concurring and dissenting: I concur with the majority’s thorough analysis that Nicholas Moody’s convictions were supported by sufficient evidence and that tire trial court did not err in denying Moody’s claim of ineffective assistance of counsel. However, I respectfully dissent from the majority’s conclusion that Moody’s separate conspiracy convictions were not multiplicitous. I also disagree with the majority’s conclusion that Moody’s convictions of attempted first-degree murder and aggravated intimidation of a witness were not multiplicitous.
“Multiplicity is the charging of a single offense in several counts of a complaint or information. The reason multiplicity must be considered is that it creates the potential for multiple punishments for a single offense in violation of the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution and section 10 of the Kansas Constitution Bill of Rights.” State v. Robbins, 272 Kan. 158, 171, 32 P.3d 171 (2001).
*571In State v. Mincey, 265 Kan. 257, 258-59, 963 P.2d 403 (1998), the defendant was convicted of both conspiracy to commit first-degree murder and conspiracy to commit aggravated robbery based upon an agreement with two coconspirators to rob and kill a female victim. In determining the separate conspiracy convictions were multiplicitous, the Kansas Supreme Court stated:
“A single continuing conspiracy, however diverse its objects, cannot be broken down into component sub-agreements for the purpose of multiple punishments or multiple prosecutions. When separate conspiracies are alleged and both are founded on a general conspiracy statute, the relevant inquiry is whether there existed more than one agreement to perform an illegal act or acts.” 265 Kan. at 268.
Here, the majority acknowledges there was one agreement between Moody and the other conspirators to kill Eric Pike to prevent him from testifying at Isaac Rodriguez’ trial. Mincey is directly on point and should compel the conclusion that Moody’s separate conspiracy convictions were multiplicitous. However, the majority has determined that Mincey is no longer good law in light of the Kansas Supreme Court’s subsequent decision in State v. Patten, 280 Kan. 385, 122 P.3d 350 (2005). In Patten, the court held the defendant’s convictions of manufacture of methamphetamine and possession of drug paraphernalia with intent to manufacture methamphetamine were not multiplicitous. In reaching this conclusion, the court determined the only test for multiplicity is the strict elements test without considering the facts that must be proven to establish those elements. 280 Kan. at 393.
The majority notes the elements required to prove conspiracy to commit first-degree murder are different from the elements required to prove conspiracy to commit aggravated intimidation of a witness. Thus, in an attempt to apply the strict elements test to determine multiplicity, the majority concludes Moody’s separate conspiracy convictions were not multiplicitous.
Even if the strict elements test is the only applicable test for determining multiplicity of criminal charges, fhe court’s holding in Mincey is still good law and has not been modified by Patten. It does not matter that the elements of conspiracy to commit first-degree murder are not all the same as the elements of conspiracy *572to commit aggravated intimidation of a witness. What matters is that there was only one agreement between Moody and the other conspirators to commit these crimes. Mincey teaches that when there is one agreement between conspirators to commit multiple crimes, the agreement cannot be broken down into separate conspiracy charges for each underlying offense. 265 Kan. at 268.
Under the majority’s rationale, if coconspirators reach one agreement to commit five separate crimes, then each conspirator could be convicted of five separate conspiracy counts. This conclusion is contrary to the court’s holding in Mincey. Moody’s separate conspiracy convictions 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. See State v. Dixon, 252 Kan. 39, 49, 843 P.2d 182 (1992). Accordingly, Moody’s conviction of conspiracy to commit aggravated intimidation of a witness should be reversed.
I also disagree with the majority’s conclusion that Moody’s convictions of attempted first-degree murder and aggravated intimidation of a witness were not multiplicitous. Under the facts of this case, I would conclude the convictions were multiplicitous because the same wrongful act provided the basis for each offense.
Kansas courts have long recognized that separate offenses are multiplicitous when the defendant’s same wrongful act provides the basis for each offense, even though different elements are necessary to prove each charge. In State v. Vontress, 266 Kan. 248, 970 P.2d 42 (1998), 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 defendant asserted the convictions were multiplicitous. In arguing the convictions were not multiplicitous, the State pointed 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 *573required 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.
See also State v. Groves, 278 Kan. 302, 307-08, 95 P.3d 95 (2004) (defendant’s convictions of aggravated battery and aggravated robbery were multiplicitous under the facts); State v. Warren, 252 Kan. 169, 182, 843 P.2d 224 (1992) (defendant’s convictions of aggravated battery and aggravated robbery were multiplicitous when based on the same act of knocking the victim to the ground and taking her purse).
Here, Moody was convicted for aiding and abetting Travis Kohn who attempted to kill Pike by firing a gun at his head, but the gun misfired. Kohn was attempting to Mil Pike to prevent him from testifying at Rodriguez’ trial. To prove the crime of attempted first-degree murder, the State was required to prove one fact: Kohn attempted to Mil Pike by firing a gun at his head. To prove the crime of aggravated intimidation of a witness, the State was required to prove one fact: Kohn attempted to Mil Pike to prevent him from testifying at Rodriguez’ trial. Kohn intimidated Pike from testifying by attempting to Mil him. The State concedes that the same wrongful act provides the basis for both convictions. Based upon the rationale of Vontress, Moody’s convictions of attempted first-degree murder and aggravated intimidation of a witness were multiplicitous.
Warren, Vontress, and Groves have not been overruled. 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.
As it stands, Moody has been punished twice for the attempt to kill Pike. He was punished by the sentence he received for his *574conviction of attempted first-degree murder. He was also punished by the sentence he received for his conviction of aggravated intimidation of a witness. This is precisely what the doctrine of multiplicity is designed to prevent.
The majority is correct in noting that the elements of attempted first-degree murder are different from the elements of aggravated intimidation of a witness. Under the strict elements test enunciated in Patten, attempted first-degree murder and aggravated intimidation of a witness are not multiplicitous crimes. Then again, it is difficult to discern how any two crimes are multiplicitous under a strict elements test, since no two crimes have virtually the same elements. In any event, the present case can be distinguished from Patten, a drug case which did not address the single act of violence rale 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 the same wrongful act committed by the defendant.
Finally, there is no need to adopt the strict elements test as the only test for multiplicity in order “to avoid any possibility of returning to the difficulties of the second prong of the Fike test.” Patten, 280 Kan. at 393; see State v. Fike, 243 Kan. 365, Syl. ¶ 1, 757 P.2d 724 (1988) (a crime may be a lesser included offense of the crime charged if the evidence required to prove the crime charged necessarily proves the lesser crime). The “second prong of the Fike test” was only applicable in determining lesser included offenses, and this test has now been eliminated based upon 1998 amendments made to K.S.A. 2005 Supp. 21-3107(2). See L. 1998, ch. 185, sec. 1; State v. Saiz, 269 Kan. 657, 661-63, 7 P.3d 1214 (2000). However, this was never a proper test for determining multiplicity. The fact that Kansas appellate courts have traditionally addressed the issue of multiplicity interchangeably with the issue of lesser included offenses has contributed to the confusion. See Mincey, 265 Kan. at 261; Warren, 252 Kan. at 175. The doctrine of multiplicity, which prohibits multiple punishments for a single offense, is derived from tire Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. The test for multiplicity is not, *575and never has been, governed by the language of K.S.A. 2005 Supp. 21-3107(2).
Under the facts of this case, Moody’s convictions of attempted first-degree murder and aggravated intimidation of a witness were multiplicitous. Both convictions were based upon the same wrongful act. Accordingly, Moody’s conviction of aggravated intimidation of a witness should be reversed.