concurring and dissenting: I concur with the majority in all respects except for its conclusion that Henry Escalante’s conviction of aggravated battery did not merge with the conviction of attempted aggravated kidnapping. The majority concludes that had the “crime [of aggravated kidnapping] been successfully completed, the aggravated battery would have been merged with the aggravated kidnapping.” However, because Escalante was only convicted of attempted aggravated kidnapping, tire majority concludes there was no merger. I fail to follow this reasoning and conclude instead that the two convictions arise from a single act of violence and are therefore multiplicitous.
Escalante attempted to force his ex-wife Nancy to drive to the country against her will. When she tried to get away, he repeatedly stabbed her in the chest, waist, neck, and arm. For these acts, Escalante was charged with aggravated battery and also with aggravated kidnapping. The jury found him guilty of aggravated battery as charged. The jury also found Escalante guilty of attempted aggravated kidnapping as a lesser included offense of aggravated kidnapping, presumably because he did not succeed in getting Nancy to drive to the country. Escalante received a separate sentence for each conviction. The issue is whether under these facts the conviction of aggravated battery merged into the conviction of attempted aggravated kidnapping so as to make the separate convictions multiplicitous.
Multiplicity exists where the State attempts to use a single wrongful act as the basis for multiple charges and is based on the doctrine of merger. State v. Garcia, 272 Kan. 140, 143, 32 P.3d *389188 (2001). Multiplicity is the charging of a single offense in several counts of a complaint or information. The primary concern with multiplicity is that it creates the potential for multiple punishments for a single offense, which is prohibited by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. State v. Vontress, 266 Kan. 248, 255, 970 P.2d 42 (1998).
The Kansas Supreme Court has candidly noted that the issue of multiplicity “has been a highly confusing subject in Kansas law, and our prior cases have not always been clear.” Garcia, 272 Kan. at 142. Kansas appellate courts have struggled in many cases to develop a “test” for determining multiplicity. While recent decisions have relied upon a strict “elements test” as the method of determining multiplicity, Kansas has also long recognized the merger of crimes when they arise from a “single act of violence.” The following summary of cases demonstrates the alternative approaches Kansas courts have followed in resolving multiplicity issues.
In State v. Garnes, 229 Kan. 368, 624 P.2d 448 (1981), the defendant shot the victim at a nightclub causing only a superficial wound. The defendant and the victim then drove out to the country where the defendant attempted to kill the victim by stabbing her and running over her with the car. The defendant was charged with one count of attempted murder and two counts of aggravated battery, one count for the shooting incident at the nightclub and one count for the stabbing incident in the country. The defendant was convicted as charged and on appeal argued that the aggravated battery convictions were multiplicitous with the attempted murder conviction.
The court noted that a single wrongful act may not furnish the basis for more than one criminal prosecution. The court then determined that if each offense charged required proof of a fact not required in proving the other, the offenses do not merge and the charges are not multiplicitous. This is known as the “elements test.” However, the court also determined that where offenses are committed separately at different times and places, they cannot be said to arise out of a single wrongful act. 229 Kan. at 373. Under the *390facts of the case, the court held the aggravated battery count for tire stabbing incident in the country was multiplicitous with the attempted murder. However, the aggravated battery count for the shooting at the nightclub was not multiplicitous with the attempted murder because the offenses occurred at different times and places. 229 Kan. at 373-74.
In State v. Warren, 252 Kan. 169, 843 P.2d 224 (1992), two women knocked an elderly woman to the ground and forcibly took her purse. The victim spent almost 3 months in the hospital recovering from a dislocated shoulder, a broken kneecap, broken teeth, and facial abrasions. The defendant served as the getaway driver for the two women and was convicted of aggravated battery and aggravated robbery as an aider and abettor. On appeal, he claimed the convictions were multiplicitous.
The court recognized the elements test to determine multiplicity which was enunciated in Games. The court further noted that the offenses of aggravated battery and aggravated robbery each required proof of a fact not required in proving the other. Nevertheless, the court stated:
“If the charges in this case are not multiplicitous because one charge involves proof of a fact not required in proving the other, then it leads to the conclusion that only crimes involving identical elements can be multiplicitous. This cannot be the case because this court has found crimes involving different elements multiplicitous. [Citations omitted.]” (Emphasis added.) 252 Kan. at 182.
The court concluded: “We are satisfied, and so hold, that aggravated robbery and aggravated battery are multiplicitous if, as in the case here, the same act of violence provided the basis for each conviction. The defendant’s conviction for aiding and abetting aggravated battery is reversed and the sentence therefor vacated.” (Emphasis added.) 252 Kan. 182.
Warren was followed by Vontress, where the defendant shot the victim in the course of a robbery and was convicted of separate counts of aggravated robbery and aggravated battery. On appeal, the court stated: “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.” 266 Kan. at 256. In arguing that the convictions were not multiplicitous, the State *391pointed out that aggravated battery required proof of elements not necessary to prove aggravated robbery, and vice versa. Thus, according to the State, the convictions were not multiplicitous under the elements test. The court rejected this argument and stated:
“The State fails to acknowledge that the sole allegation of bodily harm in its complaint and the judge’s instructions to the jury was Spires’ [the victim] gunshot wounds. To prove the bodily harm element of aggravated robbery, the State was required to prove one fact: Vontress shot Spires — the same fact necessary for proof of the great bodily harm element of aggravated battery. Under the information and instructions in this case, the aggravated battery count required proof of the fact which was also required to prove the aggravated robbery charge. Therefore, the convictions are multiplicitous, and the punishment for both crimes is a violation of double jeopardy. The aggravated battery conviction is reversed.” 266 Kan. at 257.
The next significant case is Garcia, where the defendant sexually assaulted the victim, taping her hands and feet in the process. He was convicted of aggravated kidnapping, two counts of rape, and one count of aggravated criminal sodomy. The State relied upon one of the rapes or the aggravated criminal sodomy in order to establish the bodily harm element of aggravated kidnapping.
On appeal, the court held crimes are multiplicitous where: (1) the crimes merge, that is, they constitute a single wrongful act, and the same evidence is required to prove both crimes; but if each offense requires proof of a fact not required in proving the other, the offenses do not merge; and (2) one offense is an included offense of the other as provided under K.S.A. 21-3107. Garcia, 272 Kan. 140, Syl. ¶ 3. The court determined that the crimes were not multiplicitous under the common-law elements test because both rape charges and the aggravated criminal sodomy charge required an element not found in the aggravated kidnapping charge. 272 Kan. at 144. However, the court concluded that under the alternative test for multiplicity, the defendant’s conviction for aggravated kidnapping was multiplicitous with either the rape or aggravated criminal sodomy convictions because “the bodily harm needed to prove aggravated kidnapping was the same bodily harm supplied by one of the rape convictions or the aggravated criminal sodomy conviction.” 272 Kan. at 147. However, the Garcia court *392pointed out a change in the multiplicity analysis as a result of the 1998 revision of K.S.A. 21-3107:
“It should be noted that in 1998, the Kansas Legislature amended K.S.A. 21-3107 to essentially remove the former K.S.A. 21-3107(2)(d). See L. 1998, ch. 185, § 1. In its place, the legislature inserted a new version, K.S.A. 2000 Supp. 21-3107(2)(b), which provides that an included crime is one where ‘all of the elements of the lesser crime are identical to some of die elements of the crime charged.’ This will necessarily change the multiplicity analysis for cases which occur under the new statute and signifies a return to the identity of the elements standard that this court used prior to the enactment of KS. A. 21-3107. Such a change, while allowing convictions for crimes which would have been multiplicitous under die statute at issue here, does not violate constitutional prohibitions against double jeopardy as it does not subject defendants to punishments greater than those intended by the legislature. [Citation omitted.]” (Emphasis added.) 272 Kan. at 147.
The applicable law regarding multiplicity was seemingly clarified in State v. Schuette, 273 Kan. 593, 44 P.3d 459 (2002), where the court held the defendant’s convictions of criminal threat and harassment by telephone were not multiplicitous. There, the court, after quoting extensively from Garcia, stated: “The present statutory language in essence mirrors the common-law elements test, thereby leaving it as the only remaining test for multiplicity.” (Emphasis added.) 273 Kan. at 601.
However, in State v. Groves, 278 Kan. 302, 95 P.3d 95 (2004), a case with facts similar to Warren, the court once again departed from the elements test to determine multiplicity. The victim had been thrown to the ground while the defendant attempted to grab her purse, and the defendant was convicted of aggravated battery and aggravated robbery. The conviction for aggravated battery was set aside by tire Groves court under the rationale that both convictions were the result of a single act of violence. 278 Kan. at 307-08. In doing so, the court declared: “The single act of violence paradigm concerning multiplicity is unaffected by the lesser included analysis under K.S.A. 21-3107 before or after the 1998 amendment.” 278 Kan. at 305.
The application of the multiplicity doctrine becomes even more complex in drug cases. In State v. Stevens, 278 Kan. 441, 447, 101 P.3d 1190 (2004), the court stated: “The test to determine whether *393the 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.” However, the court looked to the facts that must be proven to establish those elements when applying the test. Under the facts of the case, the court held the offenses of possession of ephechine or pseudoephedrine with intent to manufacture methamphetamine and attempted manufacture of methamphetamine were multiplicitous. 278 Kan. at 448. However, the court also held the offenses of attempted manufacture of methamphetamine and possession of drug paraphernalia were not multiplicitous. 278 Kan. at 450.
Finally, in State v. Patten, 280 Kan. 385, 122 P.3d 350 (2005), the court held the defendant’s convictions of manufacture of methamphetamine and possession of drug paraphernalia with intent to manufacture methamphetamine were not multiplicitous. The court reiterated its reliance on the elements test for determining multiplicity but rejected the “common-law” elements test in Stevens, which allowed the court to consider the facts. 280 Kan. at 389-93. Instead, the court held “the test of multiplicity is the strict elements test without considering the facts that must be proven to establish those elements.” 280 Kan. 385, Syl. ¶ 4. The court concluded:
“What most recommends the strict elements analysis is its logical, mechanical ease of application and hence, certainty. Consideration of the facts proved, in contrast, puts multiplicity on a case-by-case basis. We therefore adopt use of the strict elements analysis to determine multiplicity for several reasons: (1) for facility of application and certainty, and (2) to avoid any possibility of returning to the difficulties of the second prong of the Fike test.” 280 Kan. at 393.
This summary of Kansas decisions seemingly demonstrates a movement toward adopting a strict elements test as the only method of determining multiplicity of criminal charges. However, not all prior Kansas decisions have relied on the elements test to determine multiplicity and some decisions even questioned the usefulness of that test. Warren, Vontress, and Groves have not been overruled. These decisions were driven by the facts and in each case the court concluded that separate offenses were multiplicitous when the defendant’s same wrongful act provided the *394basis for each offense, even though different elements were necessary to prove each charge.
One reason for the confusion may be that Kansas appellate courts have traditionally addressed the issue of multiplicity interchangeably with the issue of lesser included offenses, focusing on the statutory language of K.S.A. 21-3107. This confusion was noted by the court in Warren. 252 Kan. at 175. In the process, courts have consistently attempted to apply an elements test to determine multiplicity when such a test is actually more appropriate to determine the issue of lesser included offenses.
K.S.A. 2005 Supp. 21-3107 deals with multiple prosecutions and lesser included crimes. Section (1) of this statute provides:
“When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment.” (Emphasis added.)
Simply put, when the criminal conduct of a defendant establishes the commission of more than one crime, K.S.A. 21-3107(1) provides statutory authority for multiple prosecutions for the separate crimes. However, 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.” (Emphasis added.) State v. Mincey, 265 Kan. 257, 262, 963 P.2d 403 (1998).
K.S.A. 2005 Supp. 21-3107(2) deals with lesser included offenses and provides a statutoiy test to define an “included crime.” Upon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both. Prior to 1998, this statutory definition included the language “a crime necessarily proved if the crime charged were proved.” See L. 1998, ch. 185, sec. 1. Based upon this language, Kansas appellate courts adopted a two-pronged analysis to determine lesser included offenses:
“The first step is to determine whether all of the statutory elements of the álleged lesser included crime are among die statutory elements required to prove the crime charged. If so, the lesser crime is a lesser included crime of the crime charged. Under the second prong of tire test, even if the statutory elements of *395the lesser crime are not all included in the statutory elements of the crime charged, the lesser crime may still be a lesser included crime ... if the factual allegations of the charging document and the evidence required to be adduced at trial in order to prove the crime charged would also necessarily prove the lesser crime.” State v. Fike, 243 Kan. 365, Syl. ¶ 1, 757 P.2d 724 (1988).
In 1998, K.S.A. 21-3107 was amended to delete the language about a crime necessarily proved if the crime charged was proved. This eliminated the second prong of the Fike analysis from the process of determining lesser included offenses. Under the current version of 21-3107(2), a lesser included crime includes a lesser degree of the same crime, an attempt, or “a crime where all the elements of the lesser crime are identical to some of the elements of the crime charged.” Thus, the elements test is now the only applicable test to determine whether an offense constitutes a lesser included crime of the crime charged. State v. Saiz, 269 Kan. 657, 661-63, 7 P.3d 1214 (2000).
However, this same strict elements test does not always lend itself to the determination of multiplicity. Whether two separate offenses are multiplicitous must be determined by the circumstances of each case. The facts matter and must be considered. If a single wrongful act by the defendant provides the basis for more than one charge, then the offenses are multiplicitous and the defendant must not receive multiple punishments for the same act.
Returning to the facts of this case, Escalante’s case is identical to Vontress except here we are dealing with aggravated battery merging with attempted aggravated kidnapping rather than aggravated battery merging with aggravated robbery. Escalante was charged with aggravated battery by causing physical contact with Nancy with a deadly weapon, to wit: a knife. He was also charged with aggravated kidnapping, rather than simple kidnapping, because he inflicted bodily harm on Nancy in the course of the abduction. To prove the bodily harm element of aggravated kidnapping, the State was required to prove one fact: Escalante stabbed Nancy — the same fact necessary to prove the aggravated battery charge. In the closing argument, the State argued that the stabbing incident was the basis for both the aggravated battery and the aggravated kidnapping. Under the information and instructions in *396this case, the aggravated batteiy count required proof of the same fact necessary to support the aggravated kidnapping charge. Based upon the rationale of Vontress, the aggravated battery charge and tire aggravated kidnapping charge were multiplicitous.
Escalante was only convicted of the lesser included offense of attempted aggravated kidnapping, but this does not change the analysis. To find Escalante guilty of aggravated batteiy, the jury must have found that he stabbed Nancy with a knife. To find Escalante guilty of attempted aggravated kidnapping, the jury must have found that Escalante inflicted bodily harm on Nancy in the course of a kidnapping, but that he failed to complete the commission of the crime of kidnapping. The only evidence of bodily harm inflicted upon Nancy was the stabbing incident, and this was the State’s theory of the case. Thus, even though Escalante was only convicted of attempted aggravated kidnapping, the same stabbing incident provided the basis for that conviction as well as the aggravated battery conviction.
As in all cases, the State had discretion concerning the charges to be filed against Escalante. The State could have charged Escalante with separate counts of simple kidnapping and aggravated battery and in such a case there would have been no multiplicity problems. However, when the State chose to charge Escalante with aggravated kidnapping based upon the infliction of bodily harm upon Nancy, die aggravated batteiy charge merged into the aggravated kidnapping charge. Escalante’s convictions on both counts were multiplicitous.
As it stands, Escalante has been punished twice for his act of stabbing Nancy. He was punished by the sentence he received for the aggravated battery conviction. He was also punished by the enhanced sentence he received for attempted aggravated kidnapping as opposed to the sentence he could have received for attempted simple kidnapping. The fact that the trial court chose to run the sentences concurrently does not change the result that Escalante has received multiple punishments for the same act. This is precisely what the doctrine of multiplicity is designed to prevent.
The majority is correct in noting that the elements of attempted aggravated kidnapping are different from the elements of aggra*397vated battery. Under the strict elements test enunciated in Patten, aggravated battery and attempted aggravated kidnapping cannot possibly be multiplicitous crimes. However, the present case can be distinguished from Patten, a drug case which did not address the single act of violence rule of multiplicity. The holding of Patten should be limited to its facts and. does not undermine the many prior decisions recognizing the merger of crimes when they arise from a single act of violence by the defendant.
Under the facts of this case, Escalante’s convictions of aggravated battery and attempted aggravated kidnapping were multiplicitous. If a jury returns guilty verdicts to multiplicitous charges, the trial court must accept only the verdict as to the greater charge under the doctrine of merger. State v. Dixon, 252 Kan. 39, 49, 843 P.2d 182 (1992). Accordingly, Escalante’s conviction of aggravated batteiy should be set aside.