No. 82,636
No. 82,637
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
SCOTT M. ARCULEO,
Appellant.
SYLLABUS BY THE COURT
1. While generally a defendant may not dispute allegations supporting a search warrant, a hearing is required if a defendant makes a showing supported by a sworn allegation that the application for the search warrant contained material statements of deliberate falsehood or of reckless disregard for the truth which were necessary to the finding of probable cause.
2. When the information in an affidavit for a search warrant is obtained from the defendant's spouse, who resides with the defendant in the residence to be searched, no further showing of the witness' reliability is required.
3. Omission of material information from an affidavit in support of an application for a search warrant may be grounds for finding that the affidavit was fatally flawed. However, the omitted information must be material.
4. The test for a material omission in an affidavit in support of a search warrant is whether the issuing magistrate would have had probable cause to issue the search warrant if the omitted information had been included.
5. Kansas courts utilize a three-prong test when determining whether the compulsory joinder rules apply under K.S.A. 21-3108: (1) The prior prosecution must have resulted in either a conviction or an acquittal; (2) evidence of the present crime must have been introduced in the prior prosecution; and (3) the present crime must be one which could have been charged as an additional count in the prior case.
6. Presentation of evidence concerning other crimes admitted at a sentencing hearing, which is presented to enhance the defendant's sentence, constitutes introduction of evidence in a "prior prosecution" if those other crimes are prosecuted at a later time.
7. The principles of State v. Hill, 271 Kan. ___, 26 P.3d 1267 (2001), are analyzed and applied.
8. Improper remarks made in closing arguments are grounds for reversal only when they are so gross or flagrant as to prejudice the jury against the accused and deny him or her a fair trial.
Appeal from Lyon District Court; MERLIN G. WHEELER, judge. Opinion filed November 30, 2001. Affirmed in part, reversed in part, and remanded with directions.
Patrick H. Dunn, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, for the appellant.
No appearance for the appellee.
Before PIERRON, P.J., MARQUARDT and BEIER, JJ.
PIERRON, J.: Scott M. Arculeo appeals his convictions in two Lyon County cases. In 97CR350, he was convicted by a jury of one count of rape, two counts of aggravated criminal sodomy, and two counts of aggravated indecent liberties with a child. In 97CR180, he was convicted on stipulated facts to the court of three counts of aggravated criminal sodomy, four counts of sexual exploitation of a child, and one count of criminal possession of a firearm. The cases were consolidated on appeal.
On May 20, 1997, Officer Mark Senn of the Emporia Police Department responded to a report of a domestic dispute at Arculeo's apartment. When he arrived on the scene, Officer Senn found Darlene Murdock, Arculeo's common-law wife, lying in the street and emotionally upset. Murdock told Officer Senn she had been thrown out of her house, had no money, and knew no one in town. Officer Senn stated Murdock had suicidal ideation and pursuant to department policy, he took her to the hospital for a mental evaluation. During the 2 1/2 hours the two sat in the hospital waiting room, Murdock made statements which formed the basis of the affidavit for the search of Arculeo's apartment.
Murdock told Officer Senn that within the last 2 weeks Arculeo had allowed two females to live with them. She said Arculeo gave one of the females $250 to buy some illegal drugs. Murdock admitted to using some of the drugs after the female returned to the apartment. Murdock told Officer Senn the female had the drugs in a briefcase. She said they did not use all the drugs and the remainder was being stored in Arculeo's personal safe in his bedroom or in the briefcase. Murdock also said Arculeo liked to use a video camera and that he may have videotaped some of the drug use incidents.
Officer Senn obtained a search warrant based on the information received from Murdock. During execution of the search warrant and a search of Arculeo's personal safe, officers discovered several videotapes, photographs of nude or semi-nude young boys, and rolls of 35 mm film and instamatic film. The officers also found a briefcase with a zip lock bag inside containing a white powdery substance, several smoking pipes, rolling papers, a plastic bag containing vegetation, and a gun under Arculeo's bed. Upon viewing the videotapes, officers discovered pornographic material of young boys involved in sexual activity, including sexual activity with Arculeo and with both Arculeo and Murdock.
On May 27, 1997, Arculeo was arrested and charged in Case No. 97CR180 with multiple counts of aggravated criminal sodomy, aggravated indecent liberties with a child, sexual exploitation, sexual exploitation of a child, and criminal possession of a firearm. The children involved in 97CR180 were P.G., D.R., D.G., and M.M. As information of the case became public, other victims came forward. On August 27, 1997, Arculeo was charged in Case No. 97CR350 with rape of a child under 14 years, two counts of aggravated criminal sodomy, and two counts of aggravated indecent liberties. The children involved in 97CR350 were A.G., M.M., M.W., and K.G.
Although 97CR180 was scheduled for trial before 97CR350, due to repeated continuances of 97CR180, a jury trial in 97CR350 occurred first. Each of the four victims, A.G., M.M., M.W., and K.G., testified to the sordid details of Arculeo's sexual abuse when they would spend the night at his house. The jury found Arculeo guilty on all counts. The trial court granted the State's request for an upward departure based on the following factors:
"(1) Defendant's acts were part of a comprehensive scheme to sexually abuse and record the abuse of minor children perpetrated over a significant period of time as opposed to isolated acts; (2) Defendant's acts involved the intentional cultivation of intense personal relationships designed to promote defendant's access to minor children; (3) Defendant manipulated parents of children in order to gain access to children to satisfy his deviant sexual appetite."
On August 25, 1998, the trial court sentenced Arculeo to consecutive sentences of 231 months' incarceration for rape, 115 months' incarceration for each of the aggravated criminal sodomy convictions, and 76 months' incarceration for each of the aggravated indecent liberties convictions. However, the trial court reduced the entire sentence to a total period of incarceration of 462 months in order to conform to the limits set by the Kansas Sentencing Guidelines Act. See K.S.A. 2000 Supp. 21-4720(c)(3).
The same day he was convicted in 97CR350 (August, 25, 1998), Arculeo filed a request for a bench trial on stipulated facts in 97CR180. The trial court granted the request and ultimately found Arculeo guilty on 8 of the 13 charges. Arculeo requested a downward durational departure, arguing that since the proceedings in 97CR180 and 97CR350 were tried separately, his criminal history score was now the highest possible category ("A"), when it would have been substantially less had the cases been joined. The court denied Arculeo's departure motion and sentenced him to the presumptive sentences for the crimes in 97CR180. The court sentenced Arculeo to consecutive sentences as follows: aggravated criminal sodomy, 308 months; 34 months on each of the four convictions for sexual exploitation; 77 months on each of the remaining two convictions for aggravated criminal sodomy; and 9 months for criminal possession of a firearm. The trial court sentenced Arculeo to a total period of incarceration of 505 months. The sentence was ordered to run consecutive to the 462 months imposed in 97CR350 and to the sentences in a long list of other cases where he was on probation for burglaries and thefts. The total sentence appears to be something in the area of 100 years.
Arculeo appeals his convictions in both 97CR180 and 97CR350. The cases were consolidated on appeal.
Omissions from the Search Warrant Affidavit
Arculeo first argues evidence seized from his house was illegally obtained because the affidavit supporting the original search warrant deliberately omitted material facts concerning the reliability of the informant. He points out the affidavit for the search warrant omitted evidence that Officer Senn: (1) found Murdock lying in the middle of the street when he responded to the domestic call and that she had suicidal ideation; (2) was aware of Murdock's mental and intellectual handicap and Murdock gave the incriminating statements while she was waiting for a mental health center evaluation at a hospital emergency room; (3) noticed Murdock had subpar intelligence and she appeared easily persuaded; and (4) was aware the Women's Resource Center assisted Murdock with her finances. Arculeo argues if this additional information had been included in the affidavit, a judge could not have found sufficient probable cause for the issuance of the search warrant due to the serious questions as to Murdock's reliability.
At the hearing on Arculeo's motion to suppress, Officer Senn admitted he knew the omitted information when he requested the affidavit, but he did not put it in his application because he felt the information did not have any bearing on the search warrant. The State argued the omission of those facts would not have prevented the magistrate from finding probable cause to issue the search warrant.
In denying Arculeo's suppression motion, the trial court found there was no evidence any of the information in the application was incorrect. The court also found the informant was the common-law wife of the defendant and her statements of personal drug use with the defendant provided corroboration for her statements and added veracity to their reliability. The court concluded the totality of the circumstances provided probable cause for issuance of the search warrant and the evidence would cause a reasonable person to believe criminal activity was occurring in the defendant's apartment. We agree.
K.S.A. 22-2502 provides that a search warrant shall be issued upon oral or written application "which states facts sufficient to show probable cause that a crime has been or is being committed." Probable cause is the reasonable belief that a specific crime has been committed and that the defendant committed the crime. It does not require evidence of each element of the crime or evidence to the degree necessary to prove guilt beyond a reasonable doubt. State v. Abu-Isba, 235 Kan. 851, 853-54, 685 P.2d 856 (1984).
While generally a defendant may not dispute allegations supporting a search warrant, a hearing under Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), is required if a defendant makes a showing supported by sworn allegations that the application for the search warrant contained material statements of deliberate falsehood or of reckless disregard for the truth which were necessary to the finding of probable cause. State v. Jensen, 259 Kan. 781, 787, 789, 915 P.2d 109, cert. denied 519 U.S. 948 (1996). The same rule applies to a deliberate omission of material information. State v. Lockett, 232 Kan. 317, 319, 654 P.2d 433 (1982). While Arculeo never specifically requested a Franks hearing, the motion to suppress was, in effect, a Franks hearing. A Franks hearing is simply an evidentiary hearing on a motion to suppress evidence based on a challenge to the facts included or omitted from a search warrant. See State v. Jacques, 225 Kan. 38, 44, 587 P.2d 861 (1978).
Where, as here, information is omitted from an application for a search warrant, it should be determined whether the omission was material and whether it rendered the affidavit unreliable. State v. Cowdin, 25 Kan. App. 2d 176, 181, 959 P.2d 929, rev. denied 265 Kan. 887 (1998). In other words, would the judge in the instant case who issued the search warrant have had probable cause to do so had he been informed of the omissions claimed by Arculeo.
Arculeo does not challenge the probable cause supporting the original search warrant. The affidavit clearly sets forth evidence that Murdock saw drugs in the house, used drugs with the defendant, and saw drugs that had been purchased within the last 2 days; that Arculeo may have videotaped the incidents of drug use; and the that tapes and remaining drugs were in Arculeo's personal safe. Instead, Arculeo argues the information omitted by Officer Senn would have affected the magistrate's probable cause determination and we should reverse the denial of his suppression motion. We disagree.
First, the information obtained by Officer Senn came from Arculeo's common-law wife. Arculeo does not dispute his common-law marital status. "When the information in an affidavit for a search warrant is stated to have been obtained from the defendant's spouse, who resides with the defendant in the residence to be searched, no further showing of the witness' reliability is required." 25 Kan. App. 2d 176, Syl. ¶ 2. We also agree with the trial court that Murdock's admitted involvement in the drug activity increased the veracity of her statements.
Second, there is no evidence the omitted information affected the reliability of Murdock's statements. Officer Senn testified there was nothing about Murdock's mental capacity that made him feel her statements were unbelievable. Officer Senn stated that while she seemed "a little slow," he meant that "she seemed like a person that could be persuaded to do things that a normal person would probably stand up for." Further, Murdock told Officer Senn she had graduated from high school and that she knew the difference between right and wrong. Additionally, there is no evidence Murdock's possible retardation or the situation as observed by Officer Senn affected the reliability of Murdock's statements.
We find the search warrant would have reasonably been issued even with the inclusion of the other information and that the officer certainly had a right to rely on it. See United States v. Leon, 468 U.S. 897, 918-922, 82 L. Ed. 2d 677, 104 S. Ct. 3405, reh. denied 468 U.S. 1250 (1984) (exclusionary rule should not be applied to bar evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate, even though the warrant is ultimately found to be invalid).
Compulsory Joinder
Next, Arculeo argues the trial court erred in denying his motion to dismiss based on his claims of compulsory joinder and that prosecution of 97CR180 was barred by evidence presented at sentencing in 97CR350.
K.S.A. 21-3108 provides:
"(2) A prosecution is barred if the defendant was formerly prosecuted for a different crime, or for the same crime based upon different facts, if such former prosecution:
(a) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely; or was for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution, or the crime was not consummated when the former trial began."
K.S.A. 21-3108 is a codification of the double jeopardy rule and contains two parts, the "compulsory joinder" rule and the "identity of elements" rule. In re Berkowitz, 3 Kan. App. 2d 726, 741, 602 P.2d 99 (1979). Under the compulsory joinder rule, if evidence is admitted of an offense not contained in the charge, later prosecution of that offense is barred if it could have been included as an additional count in the first prosecution. 3 Kan. App. 2d at 742.
The object of the compulsory joinder rule is simply to prevent the prosecution from substantially proving a crime in a trial in which that crime is not charged, and then prosecuting the defendant in a subsequent trial using evidence presented in the earlier trial. 3 Kan. App. 2d at 743. The compulsory joinder rule furthers the constitutional guarantee against multiple trials and is not concerned with multiple convictions or multiple punishments for separate offenses. 3 Kan. App. 2d at 734.
Kansas courts utilize a three-prong test when determining whether the compulsory joinder rule applies. As Chief Judge Foth stated in Berkowitz:
"For the Kansas statute [K.S.A. 21-3108] to bar a prosecution under the circumstances present in this case three elements must coalesce: (1) The prior prosecution must have resulted in either a conviction or an acquittal; (2) evidence of the present crime must have been introduced in the prior prosecution; and (3) the present crime must be one which could have been charged as an additional count in the prior case." 3 Kan. App. 2d at 743.
In the present case, there is really no argument concerning satisfaction of the first and third prongs of the Berkowitz test. Under the first prong, Arculeo was convicted on all five counts in 97CR350. Under the third prong, there was nothing stopping the State from amending the complaint in 97CR180 to include the charges in 97CR350, or vice versa. The events involved similar sexual conduct and the State could easily have brought the cases together. See State v. Anthony, 257 Kan. 1003, 1016, 898 P.2d 1109 (1995) (joinder may be proper under K.S.A. 22-3203[1] if the charges are based on two or more transactions connected together or constituting parts of a common scheme or plan). All the cases in 97CR350 and 97CR180 were felonies occurring in Lyon County and could have been charged in the same complaint under K.S.A. 22-3202.
At the hearing on the motion to dismiss, the State argued Arculeo could have requested a joinder of the claims under K.S.A. 22-3203(1) and it was his tactical decision to "roll the dice" by keeping the charges separate in order to potentially benefit from an acquittal in the first trial.
There is not a burden on either the defense or the prosecution to bring a motion for joinder under K.S.A. 22-3203. While the decision to keep cases separate is a roll of the dice for either party, it is the prosecution that is restricted under K.S.A. 21-3108 with regard to the effect of a former prosecution upon remaining crimes. Under K.S.A. 21-3108, the prosecution must be careful that no significant evidence of the subsequent case is presented in the prosecution of the first case.
The issue in this case is whether the evidence of 97CR180 presented at sentencing in 97CR350 was sufficient to trigger application of the second prong of the Berkowitz test. The factual aspect of the second prong is clearly met. There can be no doubt the evidence of sexual exploitation of the children in 97CR180 came into evidence during the departure hearing in 97CR350. The State called Detective John Cronk of the Emporia Police Department to testify on the State's motion for an upward durational departure. Detective Cronk stated he was called to specifically testify concerning the evidence to be used at trial in 97CR180. Detective Cronk testified about all the videotapes and photographs discovered in the search of Arculeo's apartment. He then gave a detailed and explicit rendition of the evidence of sexual activity found on each of the 6 videotapes to be used in 97CR180. Detective Cronk also described in detail the 14 photographs of nude young boys found in Arculeo's apartment. It is undisputed that with one exception, none of the victims in the videotapes were the same victims in 97CR350. The exception is that M.M., who was a victim in both cases, was on one of the videotapes, but Detective Cronk testified there was no sexual contact shown.
During argument on the departure motion, the prosecutor stated the reason for presentation of the evidence of the crimes in the yet-to-be tried case of 97CR180 was to show that Arculeo had molested 5 other children, bringing the number of child victims to a total of 9.
As stated above, K.S.A. 22-3108 is a codification of the double jeopardy rule, which prevents multiple punishments for the same offense, found in the Fifth and Fourteenth Amendments to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights,. See State v. Thompkins, 271 Kan. ___, Syl. ¶ 4, 21 P.3d 997 (2001). The present case offends the double jeopardy rule. Not only was evidence of the crimes in 97CR180 presented to the trial court at sentencing in 97CR350, but the yet-to-be-tried crimes were utilized by the trial court to enhance Arculeo's sentence as an upward departure factor. The first departure factor adopted was: "(1) Defendant's acts were part of a comprehensive scheme to sexually abuse and record the abuse of minor children perpetrated over a significant period of time as opposed to isolated acts." None of the crimes in 97CR350 were recorded on videotape or depicted in the pictures found in Arculeo's apartment.
The majority of cases dealing with the compulsory joinder rule brought on by a prior prosecution in K.S.A. 21-3108 involve situations where evidence is presented during trial or during a plea hearing. See, e.g., State v. Wilkins, 269 Kan. 256, 261, 7 P.3d 252 (2000); State v. Barnhart, 266 Kan. 541, 542, 972 P.2d 1106 (1999); State v. Todd, 262 Kan. 916, 941 P.2d 1374 (1997). The legal question presented by the second prong of the Berkowitz test is whether evidence of crimes admitted at a sentencing hearing, which is presented to enhance the defendant's sentence, constitutes introduction of evidence in a "prior prosecution" if those other crimes are prosecuted at a later time. We believe it does.
Black's Law Dictionary 1221 (6th ed. 1990) defines "prosecute" as follows: "To follow up; to carry on an action or other judicial proceeding; to proceed against a person criminally. To 'prosecute' an action is not merely to commence it, but includes following it to an ultimate conclusion." Arculeo cites State v. Bowles, 70 Kan. 821, 827, 79 Pac. 726 (1905), where the court held:
"In the American and English Encyclopedia of Law (2d ed.), volume 23, page 268, there is a fair statement of what is included in the term 'prosecute.'
'To prosecute is to proceed against judicially. A prosecution is the act of conducting or waging a proceeding in court; the means adopted to bring a supposed offender to justice and punishment by due course of law. It is also defined as the institution or commencement and continuance of a criminal suit; the process of exhibiting formal charges against an offender before a legal tribunal, and pursuing them to final judgment on behalf of the state or government, as by indictment or information.'"
The sentencing phase of a criminal proceeding clearly constitutes a proceeding in the "prosecution" of a criminal case. The sentencing of a defendant is the culmination of a criminal prosecution. Further, the sentencing hearing is a critical phase of a criminal proceeding, requiring the presence of the defendant. K.S.A. 2000 Supp. 22-3405; State v. Braun, 253 Kan. 141, 145-47, 853 P.2d 686 (1993). Also, we agree with Arculeo that sentencing hearings have become trials within trials because of the Kansas Sentencing Guidelines Act, and the resolution of departure motions now usually filed by either one or both parties.
We find the State's presentation of the evidence in 97CR180 at the sentencing hearing in 97CR350 was covered by the compulsory joinder rule in K.S.A. 21-3108. The State was prohibited from prosecuting Arculeo in 97CR180 after those unproven crimes had been used to enhance his punishment in 97CR350. The trial court erred in denying Arculeo's motion to dismiss 97CR180. We reverse the conviction in 97CR180 and order the trial court to grant a dismissal of those charges as a violation of Arculeo's double jeopardy right.
Multiple Acts Unanimity Instruction
Next, Arculeo argues the trial court erred in failing to instruct the jury on a unanimous verdict. Our standard of review for determining whether a defendant is entitled to a new trial in a multiple acts case because the jury was not given a unanimous verdict instruction has been unsettled until recently.
Panels of the Court of Appeals have fallen into two camps. In the structural error approach, our court has held that a trial court's failure to give a unanimous verdict instruction in the appropriate circumstances was structural error and required automatic reversal. See State v. Wellborn, 27 Kan. App. 2d 393, Syl. ¶ 2, 4 P.3d 1178, rev. denied 269 Kan. 940 (2000); State v. Barber, 26 Kan. App. 2d 330, 331, 988 P.2d 250 (1999).
In the other camp, our court has applied a harmless error analysis. See State v. Hill, 28 Kan. App. 2d 28, 11 P.3d 506 (2000), aff'd 271 Kan___, 26 P.3d 1267 (2001).
In its review of Hill, the Supreme Court noted the diversity of precedent in the area and then adopted a two-step harmless error analysis:
"In applying a harmless error analysis, the first step is to determine whether there is a possibility of jury confusion from the record or if the evidence showed either legally or factually separate incidents. . . .When jury confusion is not shown under the first step, the second step is to determine if the error in failing to give an unanimity instruction was harmless beyond a reasonable doubt with respect to all acts." 271 Kan. at ___.
In Hill, the problem arose when the victim testified at trial, unexpectedly, that two digital rapes occurred during the incident instead of just one. The jury instructions did not specifically separate the two acts. As Justice Six noted:
"[M]ore than one act was presented as evidence of a single criminal offense. Here, materially identical evidence was presented with respect to both acts of rape. Hill did not present a separate defense or offer materially distinct evidence of impeachment regarding any particular act. The defense presented a general denial of participation in any wrongful conduct."
"[J]ury confusion was not shown here. In applying a harmless error review, since there was no extrinsic evidence to support the charges, the sole issue was the credibility of the victim's account of the two alleged penetrations. The evidence offered no possibility of jury disagreement regarding Hill's commission of either of these acts. By the jury's rejection of Hill's general denial, we can unequivocally say there was no rational basis by which the jury could have found that Hill committed one rape but did not commit the other." 271 Kan. at ____.
As Justice Six noted earlier in Hill:
"'In those cases in which the defense to charges based on multiple acts is a general denial, differentiation among a number of events is not required of the jury and therefore is not an issue in controversy. The jury either accepts the victim's testimony as to all and convicts, or it accepts the defendant's denial and acquits on all charges. The failure to give a unanimity instruction in those instances is harmless error; it does not relate to an issue in controversy.' Sweeney, An Analysis of Harmless Error in Washington: A Principled Process, 31 Gonzaga Law Review 277, p. 302 (1996)." 271 Kan. at ___.
In the instant case the facts in Counts II and III of 97CR350 charge factually separate incidents. The Court of Appeals stated in Hill: "Incidents are factually separate when independent criminal acts have occurred at different times or when a subsequent criminal act is motivated by 'a fresh impulse.'" 28 Kan. App. 2d 28, Syl. ¶ 4. We are dealing with a multiple acts case.
The case at bar demonstrates the difficulty of requiring a specific election or jury agreement where the evidence shows repeated sexual abuse of a young child over a long period of time. M.M.'s description of the alleged abuse offered no distinguishing characteristics identifying any separate and distinct incidents of abuse. Rather, the abuse "result[ed] in an amalgamation of the crimes in the child's mind"; thus, "the child's testimony [was] reduced to a general, and customarily abbreviated, recitation of what happened on a continuing basis." People v. Luna, 204 Cal. App. 3d 726, 748, 250 Cal. Rptr. 878 (1988).
Arculeo's due process right to a reasonable opportunity to defend against the charges was not violated. The sole issue was credibility. The generic nature of the evidence did not raise a question as to the sufficiency of that evidence. While the jury was not provided any evidence as to the frequency of the alleged crimes, e.g., once a month for 4 months, none was necessary because the appellant was charged with only one count of aggravated criminal sodomy and one count of aggravated indecent liberties with a child. Moreover, M.M. gave sufficiently specific evidence of the sexual acts. The jury could have reasonably concluded from M.M.'s testimony that his account could have come only from personal experience.
Furthermore, Arculeo's right to jury unanimity was not endangered. Although the evidence indicated that the incidents of sexual acts occurred more than the one time charged, the evidence in its entirety offered no possibility of jury disagreement regarding Arculeo's commission of any of these acts. The only issue before the jury was the credibility of M.M.'s account of the repetitive sexual offenses alleged. By the jury's rejection of Arculeo's general denial, the appellant has his unanimous jury verdict.
The above analysis and facts as presented make this case an appropriate subject for the harmless error rule. "[E]rrors that do not affirmatively cause prejudice to the substantial rights of the complaining party do not require reversal when substantial justice has been done. [Citation omitted.]" State v. Clark, 263 Kan. 370, 376, 949 P.2d 1099 (1997). Any error in not having the prosecution elect a crime or instructing the jury on u