State v. King

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CORRECTED OPINION

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 99,479

STATE OF KANSAS,
Appellee,

v.

KAMERON KING,
Appellant.


SYLLABUS BY THE COURT


1.
K.S.A. 60-455 does not prohibit the admission of evidence regarding other crimes
and civil wrongs if the evidence relates to acts committed as part of the events
surrounding the crimes or civil wrongs at issue in the trial.

2.
If a rule of evidence prohibits the admission of evidence, res gestae evidence does
not become admissible simply because it establishes the circumstances surrounding the
criminal act or civil wrong. On the other hand, res gestae evidence is not automatically
inadmissible; rather, if the evidence is relevant it can be admitted unless a rule of
evidence prevents its admission.

3.
Under K.S.A. 22-3420(3), any question from the jury concerning the law or
evidence pertaining to the case must be answered in open court in the defendant's
presence unless the defendant is voluntarily absent. Statements to the contrary in State v.
Burns, 295 Kan. 951, 287 P.3d 261 (2012), are overruled.
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4.
The failure to answer a question from the jury in open court and in the defendant's
presence creates an error that is subject to the harmless error standard stated in Chapman
v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987
(1967). Under this standard, error may be declared harmless where the party benefitting
from the error proves beyond a reasonable doubt that the error complained of will not or
did not affect the outcome of the trial in light of the entire record, i.e., where there is no
reasonable possibility that the error contributed to the verdict.

5.
The unit of prosecution defined in K.S.A. 21-3419(a)(1) is a single communicated
threat; a communicated threat constitutes only one offense even if it is perceived and
comprehended by multiple victims.

6.
In a multiple acts case where a unanimity instruction has not been given,
inconsistencies in the evidence can lead to jury confusion and lack of unanimity even
though the defendant presented a unified defense based on a general denial of
wrongdoing. In such a case, if the defendant failed to request a unanimity instruction, an
appellate court must review the record as a whole to determine if it is firmly convinced
that the jury would have reached a different verdict had the instruction error not occurred.

7.
A deadlocked jury instruction is erroneous if it informs the jury that the need for a
second trial would be a heavy burden on both sides and that there is no reason to believe
another jury would be better situated to decide the case.



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8.
In a cumulative error analysis, an appellate court aggregates all errors and, even
though those errors would individually be considered harmless, analyzes whether their
cumulative effect is such that collectively they cannot be determined to be harmless. In
other words, was the defendant's right to a fair trial violated because the combined errors
affected the outcome of the trial?

9.
The use of a defendant's prior convictions in the determination of a criminal
history score to enhance a sentence without requiring the history to be included in the
complaint and proved to a jury beyond a reasonable doubt does not violate the
defendant's constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.
2348, 147 L. Ed. 2d 435 (2000).

Review of the judgment of the Court of Appeals in an unpublished decision filed August 27,
2010. Appeal from Wyandotte District Court; ROBERT P. BURNS, judge. Opinion filed August 9, 2013.
Judgment of the Court of Appeals affirming the district court is affirmed in part and reversed in part.
Judgment of the district court is affirmed in part and reversed in part.

Matthew J. Edge, of Kansas Appellate Defender Office, argued the cause, and Carl Folsom, III,
of the same office, was on the brief for appellant.

Jennifer L. Myers, assistant district attorney, argued the cause, and Jennifer S. Tatum, assistant
district attorney, Jerome A. Gorman, district attorney, and Steve Six, attorney general, were on the brief
for appellant.

The opinion of the court was delivered by

LUCKERT, J.: Kameron King was convicted by a jury of one count of arson, three
counts of criminal threat, one felony count of criminal damage to property, one
misdemeanor count of criminal damage to property, one count of assault, one count of
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battery, and one count of domestic battery. We reverse two of King's convictions for
criminal threat, rejecting the State's theory that the unit of prosecution for a criminal
threat is the number of victims who perceive and comprehend the threat. Instead, we hold
there can only be one conviction for a single communicated threat, regardless of the
number of victims who perceive and comprehend the threat. We also reverse King's
conviction for felony criminal damage to property because the evidence established
multiple acts, the trial court did not instruct the jury it had to unanimously agree on the
act that supported the conviction, and we are firmly convinced that the error affected the
verdict.

In addition, we find two other errors but determine these errors were harmless
when considered both individually and cumulatively. One of these errors was committed
when the trial court failed to obtain a waiver of King's right to be present in open court
and then violated that right by answering a question posed by the jury during
deliberations without King being present. The other error occurred when the trial court
gave the jury an erroneous deadlocked jury instruction.

We reject the other arguments advanced by King. One of these arguments is that
K.S.A. 60-455 prohibited the admission of evidence of other crimes that were committed
at the same time as the crimes for which King was on trial. The other is that it was
unconstitutional for the sentencing court to consider King's criminal history when that
history had not been alleged in the complaint or proven to a jury.

FACTS AND PROCEDURAL BACKGROUND

King's convictions result from a series of events that occurred on June 20, 2006.
At trial, the State and King presented different versions of these events. A detailed
summary of this evidence is necessary because several of King's arguments require us to
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determine whether an error was harmless. In our discussion of the facts, we will refer to
everyone except King by first name because many of the witnesses share surnames.

One witness, Kelly Riley, testified she had known King for 14 years and he was
the father of three of her four children. King and Kelly had separated in early 2006. Kelly
testified that on June 20, 2006, she received approximately 45 telephone calls from King
during which he screamed and yelled at her because she was seeing another man. She
also said that King threatened to steal and burn her van and kill several people, including
her.

King's anger at Kelly was apparent in his interaction with others on June 20, 2006.
For example, King approached Kelly's aunt, Theresa Smith, at a baseball game. Theresa
indicated King's breath smelled of alcohol, and she described him as being "pretty angry"
about Kelly having a boyfriend.

King was also upset with his father, James King, and wanted his father to evict
Kelly from the house she was renting from King's grandmother. King allegedly acted on
this anger by ramming a stolen white flatbed truck into vehicles owned by his father.
James testified that at approximately 10:30 p.m. he heard a loud, crashing noise outside
his house. He described the noise as sounding like one vehicle colliding with another.
Three vehicles—a van, a truck, and an El Camino—were parked in front of James'
garage. James went outside and saw that his van had been shoved into the garage; he did
not see any damage to the other vehicles.

An eyewitness testified she saw a white flatbed truck repeatedly drive into the van
in James' driveway before driving off. The eyewitness testified the truck only hit the van,
but the van was pushed into the El Camino. The witness described the truck to James.

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Meanwhile, King drove to Kelly's house, arriving about an hour after his last
telephone call to her. Kelly's four children; her friend, Katie Kelly; and a friend of Katie's
were also present. King entered the house without a shirt and was visibly bleeding from
his chest. He told Kelly he had been injured while fighting with a friend. He then grabbed
a beer from the kitchen, sat down in the living room, and started arguing with Kelly. Both
Kelly and Katie testified that King slapped Kelly across the face with an open hand while
they were arguing.

A short time later, Theresa called to warn Kelly about King's behavior at the
baseball game. Kelly told Theresa that King had already slapped her and that she would
call if she needed help. After a while, Theresa called again. Kelly answered the telephone
crying, and Theresa could hear King throwing things in the background. Theresa asked to
talk to King to see if she could calm him down. King took the telephone and stated that it
was his house, and he would burn it down if he wanted.

James also called Kelly and told her someone had hit his cars. Kelly asked King if
he caused the damage. He denied responsibility and said he was driving a yellow car.
James decided to make the 5-minute walk to Kelly's house. He saw a white flatbed truck
with a damaged front end parked near Kelly's house. James confronted King about the
damaged cars. King again denied responsibility and started physically fighting with
James. While they were fighting, Kelly noticed the white flatbed truck, but she could not
tell if there was any damage to the front end.

When the fighting ended, King got back into the white flatbed truck, and headed in
the direction of James' house. James also returned to his house where he found that his
van had been further damaged and his El Camino had been damaged. The eyewitness
testified that the same white flatbed truck and driver she had seen earlier returned
approximately 5 to 10 minutes after the original incident. She observed the truck slam
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into James' vehicles again. At trial, the eyewitness identified King as the driver of the
truck.

While King and James were fighting, Katie put Kelly's children into Katie's car
and took them to Shawn and Amanda Velasquez' house. Shawn and Amanda had known
King and Kelly for many years, but King and Amanda did not get along. Then, Katie
returned with Amanda and another woman. King was gone when they first arrived, but he
returned before they went into the house. When King saw Amanda, he yelled at her, told
her she had no business on the property, and told her to leave before he started throwing
things at her. Acting on his words, King started throwing handfuls of small rocks at
Amanda, a few of which hit her.

Meanwhile, Kelly called Shawn, who quickly arrived and began physically
fighting with King. Kelly, Amanda, and Katie were within 15 feet of the fight. Each of
them testified about threats King made. Kelly testified that King yelled that he was going
to shoot everyone, everyone was going to die, and everyone was going to get shot if they
did not get off his property. While making these threats, King reached behind his back as
if he had a gun. Amanda testified that King told them to get off his property and that he
kept putting his hand in his back pocket. Amanda further testified that King was directing
the threats toward Shawn. Katie similarly testified that King acted like he had a gun and
that he said "he had a gun and we all needed to leave, he was going to shoot Shawn."
According to Shawn, King told him that he "had ten seconds to leave. Said he was
counting to ten and then he was going to shoot me, so I left." Shawn also indicated that
King kept reaching behind his back as if he had a gun.

Kelly went back into the house and locked the doors, and the others left. King then
kicked down the front door. Kelly fled the house while King threw full beer cans at her.
Kelly stopped nearby and watched King go to a shed and back to the house. A few
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minutes later, Kelly saw that the house was on fire; eventually, the fire destroyed the
home.

About 3 minutes after Kelly first noticed flames, she saw King get into her van,
which he did not have permission to drive. Law enforcement officers arrived at this point,
and King tried to drive away. He wrecked the van and then took off on foot. King was
arrested a few days later.

King testified at trial and presented a very different account of the events of June
20, 2006. In describing what led up to his arrival at Kelly's house that night, he explained
that he ran into Shawn at a gas station. Shawn was driving a white flatbed truck, and he
asked King to get in with him. As they were driving, Shawn dropped a cigarette and
swerved while trying to pick it up. In doing so, Shawn hit James' El Camino. King denied
any knowledge about damage to his father's van. He explained that neither he nor Shawn
wanted a confrontation with King's dad, so they went to Kelly's house. He denied having
called Kelly earlier in the day.

When they arrived at Kelly's house, he got out of the truck and went inside while
Shawn stayed outside. Kelly started yelling at King, so he took his children next door to
his grandmother's house. King then talked to Shawn and told Shawn that he needed to
pay for the damage to the El Camino. Shawn took a swing at King, and the two were
fighting when James arrived. At one point, King accidentally shoved James. James then
confronted King about hitting the vehicles, which King continued to deny. Then James
went to King's grandmother's house, and King told Shawn to drive the white flatbed truck
away before the police arrived. Shawn left and Amanda arrived. King told her to get off
the property, but Amanda went inside Kelly's house. King returned to his grandmother's,
told her goodbye, left her house by the back door, and went to a friend's house.

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A jury convicted King of all counts with which he had been charged, except for a
count of child endangerment. King was sentenced to 63 months' incarceration.

King appealed his convictions and sentences to the Court of Appeals. That court
rejected King's claims of error on some issues and agreed with his claims on others but
found those errors harmless. Consequently, his convictions and sentences were affirmed.
State v. King, No. 99,479, 2010 WL 3488659 (Kan. App. 2010) (unpublished decision).

King filed a petition for review, asserting the same eight arguments he brought
before the Court of Appeals: (1) The trial court erred in denying his motion for mistrial
based on the admission of prior crimes evidence; (2) his right to be present during a
critical stage of the trial was violated; (3) the trial court misstated the law in responding
to a jury question; (4) his three convictions for criminal threat are multiplicitous in
violation of double jeopardy; (5) the trial court failed to give a unanimity instruction for
the felony criminal damage to property count; (6) the trial court erred in giving an Allen-
type instruction; (7) cumulative error warrants reversal of his convictions; and (8) the
trial court violated Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d
435 (2000), when it used his criminal history to calculate his sentence.

This court granted King's petition for review and has jurisdiction under K.S.A. 20-
3018(b) (petition for review).

NO ERROR IN DENIAL OF MISTRIAL

First, King argues the trial court committed reversible error when it denied his
request for a mistrial based on the improper admission of K.S.A. 60-455 evidence.

A mistrial is appropriate if there is "[p]rejudicial conduct, in or outside the
courtroom, [which] makes it impossible to proceed with the trial without injustice to the
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defendant or the prosecution." K.S.A. 22-3423(1)(c). In applying this statute, a trial court
utilizes a two-part test. "First, the trial court must decide if '"there is some fundamental
failure of the proceeding."' [Citations omitted.] If so, in the second step of the analysis,
the trial court must assess whether it is possible to continue the trial without an
'injustice.'" State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.
Ct. 1594 (2012).

On appeal from a trial court's decision to deny a mistrial, an appellate court
focuses on the two questions and asks if the trial court abused its discretion in analyzing
those questions. Ward, 292 Kan. at 551.

In this case, the trial court ruled that the evidence on which King based his motion
for mistrial was not evidence covered by K.S.A. 60-455; in other words, the court
determined there was not a fundamental failure in the proceeding. Hence, we must
determine if the trial court erred in this determination.

The objected-to evidence, which related to threats King made toward Amanda and
to whether she saw King with a gun, was admitted during the State's redirect examination
of Amanda. To understand its significance, it is helpful to place the evidence in context.
The question that King objected to on redirect appears to have been prompted by
Amanda's testimony during defense counsel's cross-examination of her. Defense counsel
asked her if it was "true that you told the detective that you saw a gun that night?" The
reference was clearly to June 20, 2006. Amanda replied by stating: "That's what my
statement says." In the exchange that followed, Amanda indicated she had not seen a gun,
and she was not sure why her statement read that way. She speculated that the detective
"may have misunderstood what I said, because [King] kept reaching in his back pocket
like he had a gun." Then, on redirect examination, the prosecutor asked Amanda to read
the portion of the statement referred to by defense counsel. Amanda complied, reading
the following statements: "[H]e's done threatened me several times. He—he showed me
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that he's got the gun." The prosecutor then asked Amanda if she had described the gun.
She responded: "I did. I don't—I don't know why—I mean, I did not see a gun." When
the prosecutor asked if she was speaking of a gun she saw on June 20 or before, defense
counsel objected before Amanda could answer. Defense counsel immediately moved for
a mistrial on the grounds that evidence had been admitted in violation of K.S.A. 60-455.
After the trial court denied the motion based on its conclusion that K.S.A. 60-455 did not
apply, the prosecutor resumed questioning Amanda without her answering the objected-
to question and without the prosecutor asking any further questions about her statement
or the gun.

On appeal, the Court of Appeals agreed the evidence had not been erroneously
admitted. The Court of Appeals noted that "after reading Amanda's entire testimony, it
appears . . . Amanda was talking about how King threatened her several times that night,
not about times he may have threatened her in the past." King, 2010 WL 3488659, at *4-
5. The Court of Appeals then stated: "An important prerequisite to the exclusion of
evidence under K.S.A. 60-455 is that the evidence be of the person's prior bad acts."
2010 WL 3488659, at *4.

We agree with the trial court and the Court of Appeals in the conclusion that the
evidence was not excluded by K.S.A. 60-455. We disagree, however, with the sequencing
of acts required by the Court of Appeals when it stated that a "prerequisite to the
exclusion of the evidence under K.S.A. 60-455 is that the evidence be of the person's
prior bad acts." K.S.A. 60-455 does not use the word "prior" or any of its synonyms.
Rather, it states, in relevant part: "[E]vidence that a person committed a crime or civil
wrong on a specified occasion, is inadmissible . . . as the basis for an inference that the
person committed another crime or civil wrong on another specified occasion."
(Emphasis added.) Under the plain language of this provision, the other crime or civil
wrong can be committed either before or after the crime or civil wrong at issue in the
trial.
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Nevertheless, in this case, the only possibility is that the crime occurred prior to
June 20, 2006. Hence, the Court of Appeals' statement is inconsequential in the context of
this case and the Court of Appeals' ultimate point is correct: K.S.A. 60-455 does not
apply if the evidence relates to crimes or civil wrongs committed as part of the events
surrounding the crimes for which King was on trial—that is, the res gestae of the crime.
As we noted in State v. Peppers, 294 Kan. 377, 389, 276 P.3d 148 (2012),"[o]ur decision
in [State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006)] eliminated res gestae as an
independent basis for the admission of evidence. It did not eliminate the admission of
evidence of events surrounding a commission of the crime under the applicable rules of
evidence." In other words, if a rule of evidence prohibits the admission of evidence, res
gestae evidence does not become admissible simply because it establishes the
circumstances surrounding the criminal act or civil wrong. On the other hand, res gestae
evidence is not automatically inadmissible; rather, if the evidence is relevant it can be
admitted unless a rule of evidence prevents its admission. See K.S.A. 60-407 ("Except as
otherwise provided by statute . . . (f) all relevant evidence is admissible.").

In this case, while it is unclear what time frame Amanda was using in her
statement to the detective, any ambiguity was clarified during Amanda's trial testimony
because defense counsel's questions specifically limited the scope to the night of June 20,
2006. The prosecutor's attempt to inquire about whether Amanda's statements to the
detective had been similarly directed to June 20 was cut off by defense counsel's
objection, and the jury never heard her answer. Consequently, the evidence was limited to
acts occurring during the chain of events at Kelly's house on June 20.

We agree with the trial court and the Court of Appeals in the conclusion that the
evidence was admissible and was not excluded under K.S.A. 60-455 as evidence of a
crime committed by King on an occasion other than the one for which he was on trial.
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This means there was not a fundamental failure in the proceeding and King was not
entitled to a mistrial.

REVERSIBLE ERROR RELATING TO CRIMINAL THREAT CONVICTIONS

Next, King presents three issues related to his three convictions for criminal threat.
To frame those issues, some clarification of the threat at issue is necessary because there
was evidence of several threats made on June 20, 2006. But during closing arguments,
the State elected one threat to support the three counts charging King with making a
criminal threat. In doing so, the prosecutor argued: "Boom, I'm going to shoot you if you
don't get off my property in ten seconds. I'm holding my hand behind my back." Then,
after discussing the witnesses' testimony, the prosecutor argued that King communicated
the threat in "reckless disregard" and that Shawn, Amanda, and Katie heard it.

The jury asked two questions during its deliberations, seeking clarification of the
law regarding a criminal threat. The handling of these questions and the trial court's
answers give rise to two of King's issues. In another issue, King argues his three criminal
threat convictions are multiplicitous.

Defendant's Right to Be Present In Open Court When Judge Answers Jury's Question

In one question, the jury asked for a "description of intent to terrorize." King raises
a procedural issue regarding the manner in which this question was answered.
Specifically, King notes there is nothing in the record establishing whether the court
informed King or either counsel of the question or that the court consulted with them
regarding the appropriate answer. It appears the judge, without opening court, responded
to the question in writing by providing the jury with a definition of the words "terrorize"
and "threat." On appeal, King argues his right under K.S.A. 22-3405 and the Sixth
Amendment to the United States Constitution to be present during all critical stages of his
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trial was violated when the judge answered the question without his presence or,
alternatively, a waiver of that right. The Court of Appeals agreed that King's right to be
present at a critical stage of trial had been denied, but it found the error was harmless.
King, 2010 WL 3488659, at *8.

In a decision filed after the Court of Appeals' decision in this case, we rejected a
similar contention that a defendant has a constitutional right to have a jury's question
answered in open court rather than in a writing delivered to the jury. We stated:

"[The defendant] claims that sending an answer back to the jury rather than
reading the answer in the presence of the defendant violates his constitutional right to be
present at all critical stages of the trial, citing State v. Coyote, 268 Kan. 726, 732, 1 P.3d
836 (2000). [The defendant's] reliance on Coyote is misplaced. In Coyote, this court
stated:
'The trial court's written response of "no" to the jury without
more is error. A trial court, when confronted with a question submitted to
it by a jury during deliberations is required to advise counsel, provide the
parties with the question, and give them an opportunity for input in the
presence of the defendant. Thereafter, the court is required to respond in
writing to the jury in the presence of the defendant. The court did not
follow this procedure and its failure constitutes error.' (Emphasis added.)
Coyote, 268 Kan. at 732.
"Here, the trial court followed the procedure outlined by this court in Coyote.
[The defendant] and his counsel were present and informed of the jury's question. The
judge asked if there were any objections, and defense counsel proposed an alternative
phrasing for the answer." State v. Burns, 295 Kan. 951, 956, 287 P.3d 261 (2012).

The implication of the Burns decision, if not its clear message, is that it is not
necessary to open court when delivering a written answer to a jury question, even if the
defendant has not formally waived that procedure. However, the Burns decision did not
cite K.S.A. 22-3420(3), and it did not mention the rest of the Coyote court's analysis,
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which is contrary to the implication of the Burns decision. The Coyote court continued its
analysis by stating:

"K.S.A. 22-3420(3) explicitly requires that any questions from the jury
concerning the law or evidence pertaining to the case must be answered in open court in
the defendant's presence unless the defendant is absent voluntarily. The State notes that
we have generally held that the defendant's right to be present does not extend to
proceedings involving matters of law, citing State v. Sanders, 227 Kan. 892, 893-94, 610
P.2d 633 (1980), and argues that the jury's question was one of law.
"In Sanders, we found that an in-chambers argument on a motion in limine was
not a critical phase of the trial requiring the presence of the defendant. 227 Kan. at 894.
However, the State's argument in this case ignores the fact that the defendant's right to be
present extends to any communication between the trial court and the jury. [Citation
omitted.] Thus, there is no question that the trial court's failure to answer the jury's
question in the presence of the defendant violated the defendant's statutory and
constitutional rights." Coyote, 268 Kan. at 732.

Burns did not explain why the Coyote court's ultimate conclusion was wrong.
Moreover, the holding in Burns is not only inconsistent with Coyote it is inconsistent
with the recent decision of State v. Herbel, 296 Kan. 1101, 299 P.3d 292 (2013). In
Herbel, as in Coyote, we applied K.S.A. 22-3420(3), which provides:

"(3) After the jury has retired for deliberation, if they desire to be informed as to
any part of the law or evidence arising in the case, they may request the officer to conduct
them to the court, where the information on the point of the law shall be given, or the
evidence shall be read or exhibited to them in the presence of the defendant, unless he
voluntarily absents himself, and his counsel and after notice to the prosecuting attorney."
(Emphasis added.)

A potential violation of this provision arose in Herbel because the record did not
clearly establish Randy Herbel's presence or waiver of presence when an admitted
exhibit—a DVD of his statement to law enforcement officers—was replayed in open
16

court to the deliberating jury at the jury's request. We concluded that K.S.A. 22-3420(3)
"plainly mandates that the evidence 'shall be . . . exhibited to [the jury] in the presence of
the defendant unless he voluntarily absents himself.' (Emphasis added)." 296 Kan. at
1109.

The context for this holding in Herbel—a jury request to have evidence
exhibited—is different from the context of the issue in this case—a jury question
regarding the law. This difference does not lead to a different result, however. K.S.A. 22-
3420(3) plainly applies to both contexts; by its own terms it applies whenever the jurors
"desire to be informed as to any part of the law or evidence." (Emphasis added.)

Consistent with our holding in Herbel and Coyote, we overrule the statement in
Burns suggesting that a jury question need not be answered in open court even if a
defendant has not waived his or her presence. As the defendant argued in Burns and as
King now argues, any question from the jury concerning the law or evidence pertaining
to the case must be answered in open court in the defendant's presence unless the
defendant is voluntarily absent. Coyote, 268 Kan. at 732. In the present case, in a pre-
Burns argument, the State concedes that the trial court erred in responding to the jury
question outside of King's presence.

In Herbel, we also discussed the harmless error analysis that should be applied
when there is a violation of K.S.A. 22-3420(3). We concluded acts or omissions violating
K.S.A. 22-3420(3) also violate K.S.A. 22-3405(1) ("The defendant in a felony case shall
be present . . . at every stage of the trial . . . except as otherwise provided by law.") and
the guarantee of the Sixth Amendment to the United States Constitution that a criminal
defendant may be present at every critical stage of his or her trial. We further clarified
that when violations of both statutory and federal constitutional rights arise from the
same acts and omissions, we need not apply both the nonconstitutional and the federal
constitutional harmless error standards when determining if an error is reversible. Instead,
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we will apply only the more rigorous of the two standards—the federal constitutional
harmless error standard stated in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17
L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967). Herbel, 296 Kan. at 1110-11; see
Coyote, 268 Kan. at 732. Under this standard,

"error may be declared harmless where the party benefitting from the error proves beyond
a reasonable doubt that the error complained of will not or did not affect the outcome of
the trial in light of the entire record, i.e., where there is no reasonable possibility that the
error contributed to the verdict." Ward, 292 Kan. 541, Syl. ¶ 6.

As applied to this case, the State argues the breakdown in procedure did not affect
the accuracy of the trial court's response to the jury question. It points to the trial court's
use of widely recognized definitions for the terms "terrorize" and "threat" under caselaw
applying K.S.A. 21-3419(a)(1). See State v. Gunzelman, 210 Kan. 481, 486, 502 P.2d
705 (1972) (defining "threat" and "terrorize" to determine if the statute was
unconstitutionally vague); PIK Crim. 3d 56.23 (criminal threat). King does not argue
otherwise or that the answer would have been different had he been present, but he insists
the answer did not fully address the question because the court did not address intent. The
State counters that an additional explanation of intent was not necessary because the
court had given a separate instruction informing the jury of the intent element. And it is
well settled that, in considering if the jury could possibly have been misled by an error in
jury instructions, an appellate court is required to consider the instructions as a whole and
not isolate any one instruction. State v. Appleby, 289 Kan. 1017, 1059, 221 P.3d 525
(2009).

Nevertheless, the answer did not direct the jury's attention to instructions
addressing the intent element, and King argues there is reason to believe there is a
reasonable possibility that failure might have affected the verdict. He bases this argument
on a notation on two of the criminal threat verdict forms where a juror wrote
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"undecided." This word was crossed out, and the jury entered its guilty verdict on the
form. Generally, it is not the proper function of an appellate court to speculate about a
jury's deliberations or delve into the mental processes of the jury. See State v. Beach, 275
Kan. 603, 619, 67 P.3d 121 (2003); see also Saucedo v. Winger, 252 Kan. 718, 729, 850
P.2d 908 (1993) ("mental process of a juror in reaching a verdict or the factors which
influence the mental process cannot be inquired into for the purpose of impeaching a
verdict"). In addition, King's suggestion only affects the verdict for two of the counts and
his other issues relate to those counts as well. As we will discuss, there was another error
affecting those counts that we do not deem harmless. Hence, at this point, we need not
dwell further on whether the error caused by the court's failure to follow the mandate of
K.S.A. 22-3420(3) was reversible.

Unit of Prosecution Is Based on a Single Communicated Threat

The other question asked by the jury is closely related to yet another of King's
arguments, which is that the three counts of criminal threat in violation of K.S.A. 21-
3419(a)(1) are multiplicitous because they are based on the same conduct—King's threat
to shoot if Shawn, Amanda, and Katie did not get off "his" property. He argues this
conduct should constitute only one violation under the statute. In addition, he argues the
trial court erred in answering a question the jury posed that goes to the heart of the issue
of whether one communicated threat can be the basis for multiple convictions. The jury
asked: "If a terrorist threat is communicated to one party both verbally and with actions
can those actions be considered a terrorist threat to another person in the same vicinity?"
The trial court answered: "Yes." The Court of Appeals agreed with the answer and
rejected King's claim of error.

In analyzing these related issues, we begin by examining the question of whether
the three convictions are multiplicitous. This court has consistently stated that
"multiplicity is the charging of a single offense in several counts of a complaint or
19

information." State v. Thompson, 287 Kan. 238, 244, 200 P.3d 22 (2008); State v.
Schoonover, 281 Kan. 453, 475, 133 P.3d 48 (2006). "The principal danger of
multiplicity is that it creates the potential for multiple punishments for a single offense,
which is prohibited by the Double Jeopardy Clauses of the Fifth Amendment to the
United States Constitution and § 10 of the Kansas Constitution Bill of Rights."
Thompson, 287 Kan. at 244.

Questions involving multiplicity are questions of law subject to unlimited
appellate review. Schoonover, 281 Kan. at 462. When analyzing a claim of double
jeopardy,

"the overarching inquiry is whether the convictions are for the same offense. There are
two components to this inquiry, both of which must be met for there to be a double
jeopardy violation: (1) Do the convictions arise from the same conduct? and (2) By
statutory definition are there two offenses or only one?" Schoonover, 281 Kan. at 496.

Here, the State concedes that the criminal threat convictions arose from the same
conduct—King's threat to shoot if Katie, Amanda, and Shawn did not get off "his"
property and King's action of reaching behind his back, implying he may have had a gun.

Thus, our focus is on the second inquiry of whether the conduct constituted one or
more offenses by statutory definition. Because the three convictions are for multiple
violations of a single statute, the second inquiry is answered by the unit of prosecution
test. See Schoonover, 281 Kan. at 497-98. "Under this test, the statutory definition of the
crime determines what the legislature intended as the allowable unit of prosecution.
There can be only one conviction for each allowable unit of prosecution." Schoonover,
281 Kan. at 497-98; see, e.g., State v. Sprung, 294 Kan. 300, 308-11, 277 P.3d 1100
(2012) (determining the aggravated indecent liberties statute creates only a single unit of
prosecution); Thompson, 287 Kan. at 246-50 (determining that the possession of
20

precursors statute proscribes a single unit of prosecution in the intent to manufacture);
State v. Harris, 284 Kan. 560, 572-78, 162 P.3d 28 (2007) (under the capital murder
statute, it is the existence of a second victim that makes the murder punishable by death,
thus the unit of prosecution is the intentional and premeditated killing of more than one
person); State v. Pham, 281 Kan. 1227, 1248-51, 136 P.3d 919 (2006) (finding that the
aggravated robbery statute allows for more than one count for one act if more than one
person is stolen from); State v. Whetstone, 43 Kan. App. 2d 650, 652-53, 229 P.3d 399
(2010), rev. granted January 20, 2012 (determining the unit of prosecution in the criminal
threat statute is the threat to commit violence communicated to another); State v. Gomez,
36 Kan. App. 2d 664, 672-73, 143 P.3d 92 (2006) (finding the unit of activity the
legislature intended to punish is the discharging of firearms at a certain target, a dwelling,
and the number of people in the dwelling did not change the punishment).

In considering the unit of prosecution test, "[t]he determination of the appropriate
unit of prosecution is not necessarily dependent upon whether there is a single physical
action or a single victim. Rather, the key is the nature of the conduct proscribed."
Schoonover, 281 Kan. at 472; see Sprung, 294 Kan. at 310; Thompson, 287 Kan. at 245;
Harris, 284 Kan. at 573. Also, in Schoonover we cited Bell v. United States, 349 U.S. 81,
83-84, 75 S. Ct. 620, 99 L. Ed. 2d 905 (1955), for its recognition that there could be a
separate conviction for each victim if the legislature authorized such a unit of prosecution
"'clearly and without ambiguity.'" See Schoonover, 281 Kan. at 472. As we stated in
Pham, 281 Kan. at 1248: "In the absence of clear legislative intent, the rule of lenity
presumes a single physical action harming multiple victims is only one offense."

The determination of the legislative definition of the scope of conduct raises
questions of statutory interpretation, which are issues of law subject to de novo review.
Schoonover, 281 Kan. at 471. In situations in which a court is called upon to interpret or
construe statutory language, the touchstone is legislative intent. To determine legislative
intent, a court begins by examining and interpreting the language the legislature used.
21

Only if that language is ambiguous does a court rely on any revealing legislative history,
background considerations that speak to legislative purpose, or canons of statutory
construction. When a statute is plain and unambiguous, a court merely interprets the
language as it appears; a court is not free to speculate and cannot read into the statute
language not readily found there. State v. Brown, 295 Kan. 181, Syl. ¶ 5, 284 P.3d 977
(2012); Thompson, 287 Kan. at 243-44; Harris, 284 Kan. at 572.

Consequently, our analysis necessarily begins with the wording of K.S.A. 21-
3419(a), which provides:

"(a) A criminal threat is any threat to:
(1) Commit violence communicated with intent to terrorize another, or to cause
the evacuation of any building, place of assembly or facility of transportation, or in
reckless disregard of the risk of causing such terror or evacuation;
(2) adulterate or contaminate any food, raw agricultural commodity, beverage,
drug, animal feed, plant or public water supply; or
(3) expose any animal in this state to any contagious or infectious disease."

Applying this text to King's arguments, the Court of Appeals determined the plain
meaning of the statute "shows that the proscribed conduct is the making of a criminal
threat" and that the conduct proscribed has a specific statutory definition: "It is a threat
made either with the intent to terrorize another or in reckless disregard of causing such
terror to another." State v. King, No. 99,479, 2010 WL 3488659, at *9 (Kan. App. 2010)
(unpublished decision). The court reasoned that "[w]hen a person intends to terrorize
more than one person with a single threat or makes a single threat in such disregard of
others that it terrorizes more than one person, the legislature has made it a separate crime
with respect to each person so terrorized." 2010 WL 3488659, at *9. Focusing on the
types of intent appearing in the statute, the court held King's convictions were not
multiplicitous because "King appears to have acted intentionally regarding one victim
and recklessly with regard to the other two." 2010 WL 3488659, at *9.
22


We do not understand the factual basis for the Court of Appeals' conclusion that
King intended to terrorize Shawn but only recklessly terrorized Amanda and Katie.
King's threat—under any witness' version—clearly communicated an intent to motivate
all of them to leave or King would start shooting. And at least one witness testified the
threat was to shoot all of them. Additionally, even if we accept the factual distinction, the
justification only differentiates between the count listing Shawn as the victim and the two
counts listing Amanda and Katie as victims; it does not explain why the separate counts
against Amanda and Katie are not multiplicitous. Moreover, we disagree with the Court
of Appeals' legal analysis.

We are not the only ones to do so. A different panel of the Court of Appeals
reached the opposite conclusion in Whetstone, 43 Kan. App. 2d 650, concluding that one
threat communicated to two individuals constituted one offense. The Whetstone panel
noted that a plain reading of K.S.A. 21-3419(a)(1), which proscribes conduct where the
offender makes a threat "to cause the evacuation of any building, place of assembly or
facility of transportation," does not make the number of persons an element of the crime;
simply communicating a threat to take a specified action leads to the conviction. The
panel concluded this intent extended to any type of threat listed in K.S.A. 21-3419(a)(1).
43 Kan. App. 2d at 652. The Whetstone panel also noted that the statute does not require
a defendant to know the threat would be communicated to the victim, citing State v.
Wright, 259 Kan. 117, 911 P.2d 166 (1996), and State v. Woolverton, 284 Kan. 59, 159
P.3d 985 (2007). This means that the unit of prosecution is not dependent on how many
people ultimately perceive the threat. Next, the panel looked to the definition of "another"
in K.S.A. 21-3110(2), which defines the term as used throughout the criminal code. That
definition covers both singular and plural—"person or persons." Hence, the panel
determined that "the number of persons to whom the threat is communicated does not
determine the unit of prosecution." Ultimately, the panel held "the unit of prosecution is
23

the making of a threat to commit violence communicated to another," and the defendant's
convictions for criminal threat were multiplicitous. Whetstone, 43 Kan. App. 2d at 653.

Although King does not cite directly to Whetstone, he does point to the part of
K.S.A. 21-3419(a)(1) that proscribes conduct where a person makes a threat to evacuate a
structure and argues this language makes it clear that the legislature intended only one
conviction for a criminal threat regardless of the number of people inside the structure.
He argues this intent clarifies the intent as to all types of threats listed in K.S.A. 21-
3419(a)(1)—terrorizing another; or causing the evacuation of any building, place of
assembly, or facility of transportation. Therefore, according to King, threats that are
overheard should not be treated as separate violations of the statute.

The State's argument in response takes a different route than the Court of Appeals'
focus on the types of intent in the statute. The State contends the unit of prosecution
should be the target of the threat, whether multiple individuals, one individual, or a
structure. The State argues that because the purpose of the statute is to prevent serious
alarm for personal safety, the nature of the conduct proscribed should be the reception
and perception of the threat. This argument focuses on a statement in Woolverton that
indicates the legislature's use of the word "communicated" means "the threat must be
perceived and comprehended." Woolverton, 284 Kan. at 69. The State suggests this
means there is a separate offense tied to each person who perceives and comprehends the
threat.

Both the State's argument and the Court of Appeals' focus on intent fail to apply
our holding that generally "the key is the nature of the conduct proscribed." Schoonover,
281 Kan. at 472. The nature of the conduct prohibited by all three subdivisions of K.S.A.
21-3419 is defined in the first five words of the statute: "A criminal threat is any threat."
Subsection (1) adds an element to the conduct requirement—the threat must be
communicated. As the State indicates, the term "communication" means someone must
24

perceive and comprehend the threat. Woolverton, 284 Kan. at 69. Yet, as we stated in
Gunzelman, 210 Kan. at 486, "[t]he wording of the statute appears sufficient to proscribe
such threats whether directed generally against one or more persons and regardless of the
purpose which the terrorist has in mind to accomplish." In other words, if the threat is
communicated to more than one person, that is incidental; the elements of K.S.A. 21-
3419(a)(1) would be met even if just one person was victimized. Neither the object of the
threat nor the number of people perceiving the threat changes the nature of the conduct.

Further, the intent requirement—that the threat must be made "with intent to
terrorize another; or to cause [an] evacuation . . . ; or in reckless disregard of the risk of
causing such terror or evacuation"—does not change the unit of conduct, the
communicated threat. K.S.A. 21-3419(a)(1). The structure of K.S.A. 21-3419 also
suggests that the legislature did not intend to define the unit of prosecution by intent;
instead, the legislature divided the statute by the nature of the threat. See Sprung, 294
Kan. at 310 (finding that had the legislature intended to make a separate unit of
prosecution when the offender touches the child and when the child touches the offender,
the legislature could have explicitly done so); Thompson, 287 Kan. at 246-52 (finding
that had the legislature intended to make possession of each substance listed in K.S.A.
65-7006[a] a separate offense, the legislature could have explicitly stated this in the
statute).

As our discussion suggests, in K.S.A. 21-3419(a)(1) the legislature has not clearly
and unambiguously authorized a separate conviction for each victim. As such, we must
apply the rule of lenity. See Bell, 349 U.S. at 83; Pham, 281 Kan. at 1248; Schoonover,
281 Kan. at 471. Under that rule, as previously noted, we must presume that the unit of
prosecution defined in K.S.A. 21-3419(a)(1) is a single communicated threat; a
communicated threat constitutes only one offense even if it is perceived and
comprehended by multiple victims. See Pham, 281 Kan. at 1248.

25

In this case, King made one threat—get off "his" property or else he would shoot.
Regardless of his intent or the number of people who perceived the threat, he can only be
sentenced for one offense and his sentences for three offenses violates double jeopardy.
See Thompson, 287 Kan. at 244 (double jeopardy prohibits multiple punishments for a
single offense); State v. Winters, 276 Kan. 34, 42-43, 72 P.3d 564 (2003) (in cases of
multiplicitous convictions, "the defendant should be sentenced only on the more severe
offense"). Although the Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution and § 10 of the Kansas Constitution Bill of Rights protect against
multiple punishments, King does not just ask us to vacate his sentences; rather, he asks us
to reverse two convictions. See, e.g., Sprung, 294 Kan. at 311 (affirming one conviction
and reversing and vacating the second after finding convictions were multiplicitous). The
parties do not discuss the appropriate remedy in this case. And it is not necessary for us to
resolve this question because of the related error that clearly affects those convictions.

That error occurred when the trial court erroneously answered the jury's question
asking, in essence, whether there could be multiple convictions if several people were in
the vicinity when King uttered the threat. Because we have concluded that the unit of
prosecution under K.S.A. 21-3419(a)(1) is a single communicated threat, we also
conclude the trial court abused its discretion when it answered this question with a "yes."
See State v. Murdock, 286 Kan. 661, 680, 187 P.3d 1267 (2008) (response to a jury's
request for additional information during deliberations is reviewed for an abuse of
discretion); see also State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011) (discretion is
abused when guided by an erroneous legal conclusion), cert. denied 132 S. Ct. 1594
(2012).

It is apparent that this erroneous answer affected two of King's convictions and, in
turn, exposed him to a violation of his rights under both the Double Jeopardy Clause of
the Fifth Amendment to the United States Constitution and § 10 of the Kansas
Constitution Bill of Rights. As a result, we apply the federal constitutional harmless error
26

standard. Upon our review of the entire record, we conclude there is a reasonable
possibility the trial court's answer changed the outcome on at least two counts of criminal
threat. See Ward, 292 Kan. at 569 (defining constitutional harmless error standard).
Hence, we reverse two criminal threat convictions—the second and third of these
counts—and the corresponding sentences, which were concurrent with the sentence for
the other count of criminal threat.

The final question is whether these errors—the multiplicity of counts and the trial
court's erroneous legal conclusion regarding the unit of prosecution—and the previous
error—the procedural error related to the jury's inquiry about intent—affect King's
remaining (the first) criminal threat conviction. In making this assessment, we apply the
constitutional harmless error standard because one of the errors involves the
constitutional right of a defendant to be present at all critical stages of the trial. After
doing so, we conclude there is not a reasonable possibility that the errors affected the first
criminal threat conviction. The procedural error regarding the jury's inquiry about intent
did not result in a lack of accurate information being given to the jury. The court
provided the jury with appropriate definitions of the words "terriorize" and "threat."
While the court's answer would have been clearer if it had simply referred the jury back
to the intent instruction, the court gave the jury the necessary information. The other
errors relating to the unit of prosecution affect only the second and third criminal threat
convictions. If anything, our analysis confirms that one charge was appropriate. Hence,
we affirm one of King's convictions for criminal threat.

DENIAL OF RIGHT TO UNANIMOUS VERDICT

Next, King argues the trial court violated his right to a unanimous verdict because
the State introduced evidence of multiple acts which individually could have constituted
the crime of felony criminal damage to property and the jury was not given a unanimity
instruction.
27


The criminal complaint/information charged King with two counts of criminal
damage to property, one a misdemeanor and one a felony. The misdemeanor charge in
count IX charged King with damaging Kelly's van. The felony charge in count II charged
King with damaging his father James' vehicles, "a 1990 Chevy Van and [a] 1966 El
Camino." King focuses on count II, charged as a severity level 9 nonperson felony under
K.S.A. 21-3720(b)(2) (Furse 1995) (damage in excess of $500). He contends that a
unanimity instruction was required because two separate acts could have supported the
charge: One when the white flatbed truck first rammed into the van and the second when
the truck returned and hit the El Camino. In response, the State contends this is not a
multiple acts case.

When a case involves multiple acts, the jury must be unanimous in finding which
specific act constitutes the crime. See K.S.A. 22-3421; State v. Trujillo, 296 Kan. 625,
629-32, 294 P.3d 281 (2013); State v. Wright, 290 Kan. 194, 201, 224 P.3d 1159 (2010);
State v. Voyles, 284 Kan. 239, 244-45, 160 P.3d 794 (2007); see also State v. Sanborn,
281 Kan. 568, 569, 132 P.3d 1277 (2006) ("A unanimity instruction is used when the
State charges one crime but relies on multiple acts to support that one crime."). To ensure
unanimity in such cases, the trial court must give the jury a unanimity instruction, or the
State must elect the particular act it relies on for conviction. See Voyles, 284 Kan. at 244-
45.

The record on appeal does not contain a transcript of the jury instruction
conference or the parties' discussion of proposed instructions, but King acknowledges
that he did not request a unanimity instruction during the trial and is raising this issue for
the first time on appeal. Where an instruction was not requested during the trial, an
appellate court applies a clearly erroneous standard of review. K.S.A. 22-3414(3).
Recently, in State v. Williams, 295 Kan. 506, 286 P.3d 195 (2012), this court set out the
analytical framework to be applied when a claim of error is based on the failure to give a
28

jury instruction that was not requested at trial. In that decision, after recognizing the
framework for such an analysis is guided by K.S.A. 22-3414(3), we noted that past
applications of the statute had conflated the determinations of appellate reviewability,
error on the merits, and reversibility of the error. In an attempt to differentiate those
analytical steps, Williams stated:

"[T]o determine whether it was clearly erroneous to give or fail to give an instruction, the
reviewing court would necessarily have to first determine whether it was erroneous. In
other words, to determine whether the claim of error is properly reviewable, the court
must first determine whether there is an error, i.e., perform the merits review in the
second step of the normal appellate process. That review for error necessarily presents a
legal question subject to unlimited review.
"Only after determining that the district court erred in giving or failing to give a
particular instruction would the reviewing court engage in the reversibility inquiry. Given
that it has been utilized for decades, the current definition of clearly erroneous sets up the
test to determine whether the instruction error requires reversal, i.e., whether the
reviewing court is firmly convinced that the jury would have reached a different verdict
had the instruction error not occurred. This assessment of whether there has been
injustice would involve a review of the entire record and a de novo determination. Cf.
State v. Ward, 292 Kan. 541, Syl. ¶ 8, 256 P.3d 801 (2011) (harmless error analysis
performed de novo), cert. denied 132 S. Ct. 1594 (2012)." Williams, 295 Kan. at 515-16.

We further explained how to conduct the first step of the analysis when the issue is
whether it was clearly erroneous to fail to give a lesser included offense instruction,
stating: "[W]e must necessarily look first at whether it was legally and factually
appropriate for the district court to give a lesser included offense instruction." Williams,
295 Kan. at 521 (citing State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 [2012]).
When an appellate court considers the legal appropriateness of an instruction "appellate
review is unlimited, as with all questions of law." Plummer, 295 Kan. at 161. With regard
to the second step of analysis, we further explained "[t]he party claiming a clearly
29

erroneous instruction maintains the burden to establish the degree of prejudice necessary
for reversal." Williams, 295 Kan. 506, Syl. ¶ 5.

Subsequently, in Trujillo, we applied Williams in the context of a trial court's
failure to give a unanimity instruction in a case involving multiple acts—the situation
King alleges exists in this case. In doing so, we recognized our 2007 decision in Voyles
had established a similar but slightly different multi-step framework specific to the failure
to give a unanimity instruction. We summarized the Voyles framework by stating:

"The threshold question in the Voyles framework, over which the court exercised
unlimited review, was whether the case truly involved multiple acts, i.e., whether the
defendant's actions could have given rise to multiple counts of the charged crime or
whether the alleged conduct was unitary. Voyles, 284 Kan. at 244.
"The second step in Voyles was a determination of whether an error occurred. If
the State did not inform the jury which act to rely upon during its deliberations and the
trial court did not instruct the jury that it must be unanimous about the particular criminal
act that supported the conviction, there was error. Voyles, 284 Kan. at 244-45; see also
State v. Colston, 290 Kan. 952, 968, 235 P.3d 1234 (2010).
"The final step in Voyles was to determine whether the error was reversible. After
considering several alternatives, Voyles determined that the 'clearly erroneous' provision
of K.S.A. 22–3414(3) should apply. Voyles, 284 Kan. at 245-47. Voyles opined that a
district court's failure to instruct on unanimity was reversible under the clearly erroneous
standard unless the defendant had presented a unified defense or a general denial of all of
the acts, specifically explaining:
'If there is no unified defense, we do not tolerate verdict
uncertainty in these cases. Stated in the language of the clearly erroneous
standard of review applicable when no unanimity instruction has been
requested, cases not containing a unified defense are reversed because
the reviewing court is firmly convinced that there is a real possibility the
jury would have returned a different verdict if the instruction had been
given.' 284 Kan. at 253." Trujillo, 296 Kan. at 629-30.

30

In Trujillo, we next compared the Williams' and Voyles' analytical structures and
concluded the two were consistent, although some modification of Voyles was necessary
to avoid confusion. We explained:

"The framework in Williams is not significantly different from the Voyles
progression. One must necessarily perform the first two steps of Voyles—determining if
the case involves multiple acts and if an error was committed because of a failure to elect
or instruct—in order to establish that the failure to give the unanimity instruction was
erroneous, as required by the first step in the Williams analysis. Then, both paradigms
move to a clearly erroneous reversibility inquiry that uses a result-oriented test. Voyles
stated the test as 'the reviewing court is firmly convinced that there is a real possibility
the jury would have returned a different verdict if the instruction had been given.' 284
Kan. at 253. Williams' version was 'whether the reviewing court is firmly convinced that
the jury would have reached a different verdict had the instruction error not occurred.'
295 Kan. at 516. We do not discern a practical difference between the stated tests, and
therefore, we opt to omit the 'real possibility' language to avoid any confusion with the
constitutional harmless error test we set forth in State v. Ward, 292 Kan. 541, Syl. ¶ 6,
256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012) (constitutional harmless error
standard paraphrased as 'where there is no reasonable possibility that the error
contributed to the verdict')." Trujillo, 296 Kan. at 631.

This combined Williams/Voyles framework guides us in our analysis of King's
argument.

Step 1 of Williams' Test—Was a Unanimity Instruction Legally and Factually
Appropriate?

In addressing the first step of whether a unanimity instruction was legally and
factually appropriate, the threshold question involves an examination of the defendant's
conduct to determine if the alleged acts are separate and distinct from one another or part
of a single continuous course of conduct. If the incidents in question are not legally or
factually separate, there are not multiple acts. Voyles, 284 Kan. at 244-45; State v.
31

Schoonover, 281 Kan. 453, 506, 133 P.3d 48 (2006); see State v. Jones, 295 Kan. 1050,
Syl. ¶ 3, 288 P.3d 140 (2012) ("When several acts are alleged, any one of which could
constitute the crime charged, the court is presented with a multiple acts case that requires
the jury to be unanimous as to which one of the acts the defendant committed."). Whether
a case presents a multiple acts issue is a question of law over which this court has
unlimited review. Trujillo, 296 Kan. at 629; Schoonover, 281 Kan. at 506. Answering this
question requires application of the first two prongs of the Voyles test. Trujillo, 296 Kan.
at 631; Voyles, 284 Kan. at 252.

 First Prong of Voyles' Multiple Acts Test—There Were Multiple Acts

Under the first prong of the Voyles' multiple acts test, we determine whether the
conduct was unitary—that is, whether King's conduct was part of one act or represents
multiple acts that are separate and distinct from one another. Four factors assist in
analyzing this prong: "(1) whether the acts occur at or near the same time; (2) whether
the acts occur at the same location; (3) whether there is a causal relationship between the
acts, in particular whether there was an intervening event; and (4) whether there is a fresh
impulse motivating some of the conduct." Schoonover, 281 Kan. at 507.

Here, King allegedly rammed the white flatbed truck into two of his father James'
vehicles. The State acknowledges in its appellate brief that the damage to James' vehicles
was caused during two "separate incidents." But the State also argues that both the van
and the El Camino were damaged during "both incidents," there was no intervening event
between the two incidents, and the conduct was motivated by the same impulse—King's
desire to have James evict Kelly. To support these arguments, the State cites State v.
Kesselring, 279 Kan. 671, 683, 112 P.3d 175 (2005), a case involving aggravated
kidnapping and other crimes, where this court held there were not multiple acts.
Additionally, the State contrasts Kesselring and the facts of this case with the facts in
Voyles.
32


In Kesselring, the kidnapping was a continuous incident that could not be factually
separated despite the fact that the event transpired over several hours, the victim was
moved from one location to another, and the victim was momentarily free during an
attempted escape. In contrast, in Voyles, 284 Kan. 239, the defendant was convicted of
eight crimes involving two different victims and many different locations over several
months. The State contends this case is more akin to Kesselring.

The Court of Appeals disagreed, and so do we. As the Court of Appeals accurately
stated:

"The two times that the truck ran into James' vehicles are separate and distinct
acts. Although they occurred at the same location, 5 to 10 minutes elapsed between the
events, intervening events existed while King was at Kelly's house, and King arguably
had a fresh impulse to return and hit the vehicles again after leaving the first time. But it
is unclear whether both the van and the El Camino were damaged during each incident so
that either act could support the crime charged—damaging both vehicles.
"[The eyewitness] testified that the truck ran into James' van on the first incident.
She said that it hit the van three times and then on the third hit, the van hit the El Camino
and moved it over. [She] further testified that when the truck returned, it started hitting
the other vehicles that it had moved over. James said that just the van was hit during first
incident and that the van and the El Camino were hit during the second strike. Because of
this uncertainty, the jury could have likewise been unsure about whether both vehicles
were damaged in each incident. Thus, this case should be treated as a multiple-acts case."
State v. King, No. 99,479, 2010 WL 3488659, at *11 (Kan. App. 2010) (unpublished
opinion).

 Second Prong of Voyles' Multiple Acts Test—The Trial Court Erred

This means a unanimity instruction was legally and factually appropriate unless
the State elected, either explicitly or functionally, the particular criminal act upon which
33

it relied. Voyles, 284 Kan. 239, Syl. ¶ 2. The State did not make this election and, in its
brief on appeal, concedes that if this case is ruled a multiple acts case, a unanimity
instruction should have been given.

Step 2 of Williams' Test and Third Prong of Voyles' Multiple Acts Test—Reversal Is
Appropriate

Moving to the final step in the analysis under both Williams and Voyles, this court
must determine whether the error was reversible. See Trujillo, 296 Kan. at 631; Williams,
295 Kan. 506, Syl. ¶ 5; Voyles, 284 Kan. at 253. As we held in Trujillo, the test is
"'whether the reviewing court is firmly convinced that the jury would have reached a
different verdict had the instruction error not occurred.' [Williams], 295 Kan. at 516."
Trujillo, 296 Kan. at 631.

The State argues that even if this is a multiple acts case, there is no reversible error
because King presented a unified defense. See Voyles, 284 Kan. 239, Syl. ¶ 5. On the
other hand, King argues he did not present a unified defense. He notes that in his trial
testimony, he claimed he did not know how James' van was damaged. And King blamed
Shawn for the damage to the El Camino. King testified that Shawn drove the white
flatbed truck, and, although King was a passenger at the time, it was Shawn who ran the
truck into the El Camino.

The Court of Appeals agreed with the State, noting that although King identified a
specific person who allegedly hit one of the two vehicles, he generally denied being
involved in both incidents. See King, 2010 WL 3488659, at *12. The Court of Appeals
reasoned that the jury did not believe King's assertion of innocence and, "[b]ecause the
jury rejected King's version of the events that he was not involved, there is no real
possibility that it would have returned a different verdict if the unanimity instruction had
been given." King, 2010 WL 3488659, at *12. In contrast to the Court of Appeals, we
34

cannot dismiss the differences in King's testimony regarding the first and second
incidents. We reiterate a point made in Trujillo: The presentation of a unified defense or
general denial to any of the multiple acts "is merely an important and compelling factor
in firmly convincing the reviewing court that the jury would have reached a different
verdict had the instruction error not occurred." Trujillo, 296 Kan. at 631. The presentation
of a unified defense or a general denial does not foreclose reversible error in a multiple
acts case, however.

For example, while in Voyles we specifically looked at whether the defendant had
presented a unified defense or a general denial to any of the multiple acts, we also stated
that inconsistencies in the victims' testimony could lead to jury confusion and lack of
unanimity even though the defendant generally denied any wrongdoing. Voyles, 284 Kan.
at 253-55. The same can be true when other evidence presents inconsistencies that
distinguish between two or more incidents. In such a case, if the defendant failed to
request a unanimity instruction, an appellate court must review the record as a whole to
determine if it is firmly convinced that the jury would have reached a different verdict
had the error not occurred. See Trujillo, 296 Kan. at 630; Williams, 295 Kan. at 516.

In this case, a review of the record leads us to the conclusion that inconsistencies
in the evidence could have led to jury disagreement and confusion regarding who was
responsible for the two separate acts of hitting James' vehicles. King provided a partial
explanation for the first incident, blaming the damage on Shawn's careless driving. But he
did not provide an explanation for how the second incident occurred. Further, there was a
discrepancy in the evidence regarding whether both vehicles or only one was damaged
during the first incident, and King did not provide an explanation for how both vehicles
were damaged. Obviously, it is not his burden to provide these explanations.
Nevertheless, the end result was a discrepancy in the evidence and a lack of anything in
the record from which the jury could infer a motive for Shawn to return to James' house
to further damage the vehicles during the second incident. As a result, the jury could have
35

believed King's testimony regarding the first incident but found he was the one who
drove the truck into the El Camino and van during the second incident. Further,
individual jury members may have viewed each incident differently and could have
disagreed among themselves regarding what evidence was credible.

Consequently, in light of the record as a whole, we are firmly convinced the jury
would have reached a different verdict had the instruction error not occurred. As a result,
we reverse King's felony conviction for criminal damage to property as charged in count
II.

ALLEN-TYPE INSTRUCTIONAL ERROR NOT REVERSIBLE

King also challenges the language in a deadlocked jury instruction, a modified
Allen-type instruction, given along with other instructions before jury deliberations
began. See Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). The
instruction informed the jury that the need for a second trial would be a "heavy burden on
both sides" and that there is no reason to believe another jury would be better situated to
decide the case. In State v. Salts, 288 Kan. 263, 266-67, 200 P.3d 464 (2009), we held
this language was erroneous.

Nevertheless, because King admits he did not object to the instruction, he must
establish clear error. See K.S.A. 22-3414(3); Williams, 295 Kan. 506, Syl. ¶ 3. This
means he has the burden of firmly convincing us the jury would have reached a different
verdict had the jury not been erroneously instructed. See Williams, 295 Kan. at 516. The
Court of Appeals held King had not met this burden. King, 2010 WL 3488659, at *12.

Before us, King argues the instruction was clearly erroneous because the jury
asked the court to read back testimony from Katie, Amanda, and Shawn relating to the
criminal threat charges and also asked two questions seeking clarification of the law
36

regarding criminal threat. In addition, he again points to the word "undecided" that was
written on the verdict forms for two of the criminal threat counts. The significance of the
request for readback and jurors' possible indecision, if any, is mitigated because we have
already decided these two criminal threat convictions must be reversed. Further, although
the jurors asked for clarification relating to criminal threat, they never indicated they
were deadlocked.

King also argues there was "inconsistent" evidence regarding the remaining
charges for which he was convicted—arson, one count of criminal threat, misdemeanor
criminal damage to property, assault, battery, and domestic battery. Yet, the only specific
evidence mentioned by King relates to the arson charge; he notes that no one saw him
physically light the fire and that the forensic tests for ignitable fluids came back negative.
He ignores considerable evidence against him. Both Kelly and Katie testified to seeing
King walking back and forth from the shed where gas cans were stored to the house
approximately 5 to 10 minutes before the house caught on fire. Minutes after the fire
started, Kelly saw King run from the house and drive off in Kelly's van. Kelly's testimony
was corroborated by Katie, who also saw King fleeing the scene shortly after the fire
started. Kelly also testified to seeing King pull a lighter out of his pants pocket earlier
that evening. In addition, Kelly's aunt testified to her telephone conversation with King
that night in which he said that it was his house and he would burn it down if he wanted
to. Finally, Kansas City Fire Chief Jim Long testified the fire was started intentionally,
not accidentally, and a forensic chemist testified it is not uncommon to receive negative
test results when testing for ignitable fluids in an arson case.

After a review of the record, we are not firmly convinced the jury would have
returned a different verdict on those convictions we have not already reversed had the
Allen-type instruction not been given. The instruction was not clearly erroneous.


37

THE ERRORS DID NOT CUMULATIVELY RESULT IN AN UNFAIR TRIAL

In his final attack on his convictions, King argues that even if any error does not
individually require reversal of his convictions, the cumulative impact of the alleged
errors was an unfair trial and his convictions must be reversed.

"In a cumulative error analysis, an appellate court aggregates all errors and, even
though those errors would individually be considered harmless, analyzes whether their
cumulative effect is such that collectively they cannot be determined to be harmless.
[Citation omitted.] In other words, was the defendant's right to a fair trial violated
because the combined errors affected the outcome of the trial?" State v. Tully, 293 Kan.
176, 205, 262 P.3d 314 (2011).

In this case, because the right to be present during all critical stages of a trial is a
right guaranteed by the United States Constitution, we must determine there is no
reasonable possibility these errors combined to contribute to the verdict. See State v.
Herbel, 296 Kan. 1101, 1111, 299 P.3d 292 (2013) (constitutional harmless error
standard applies when jury's question is answered outside defendant's presence); State v.
Ward, 292 Kan. 541, 578, 256 P.3d 801 (2011) (explaining constitutional harmless error
standard), cert. denied 132 S. Ct. 1594 (2012).

"In making the assessment of whether the cumulative errors are harmless error, an
appellate court examines the errors in the context of the record as a whole considering
how the trial court dealt with the errors as they arose, including the efficacy, or lack of
efficacy, of any remedial efforts; the nature and number of errors committed and their
interrelationship, if any; and the strength of the evidence." State v. Warrior, 294 Kan.
484, 517, 277 P.3d 1111 (2012).

"Reversal for cumulative error is not required if the evidence against a defendant is
overwhelming." State v. Parks, 294 Kan. 785, 779, 280 P.3d 766 (2012) (citing State v.
McCaslin, 291 Kan. 697, 732, 245 P.3d 1030 [2011]); State v. Colston, 290 Kan. 952,
38

Syl. ¶ 15, 235 P.3d 1234 (2010) ("No prejudicial error may be found upon this
cumulative effect rule . . . if the evidence is overwhelming against the defendant.").

In this case, in weighing the impact of the errors, it is significant that we have
determined that two criminal threat convictions and the felony criminal damage to
property conviction must be reversed. By doing so, we have cured the errors that led to
those convictions. And these errors—an improper instruction to the jury regarding the
unit of prosecution under the criminal threat statute, double punishment because of
multiplicitious criminal threat convictions, and the need for a unanimity instruction
because of multiple acts of felony criminal damage to property—do not infect the other
convictions. That leaves two errors for our cumulative error analysis: The trial court's
failure to answer a jury question in open court and the trial court's improper instruction to
the jury regarding the impact of a deadlocked jury.

Examination of these remaining errors in the context of the record as a whole
convinces us they were relatively insignificant and bore no relationship to each other.
Given this and the strong evidence against King, we conclude it is unlikely the errors
contributed to the verdict.

SENTENCE DOES NOT VIOLATE APPRENDI

Finally, King contends the use of his prior convictions in his criminal history score
to enhance his sentences without requiring the history to be included in the complaint and
proved to a jury beyond a reasonable doubt violated his constitutional rights under
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). King
acknowledges that this court has previously rejected this argument. See State v. Ivory,
273 Kan. 44, 46-48, 41 P.3d 781 (2002). The Court of Appeals correctly found no merit
to King's contention. See King, 2010 WL 3488659, at *13. King has not presented a new
or persuasive argument compelling us to vary from our precedent.
39

CONCLUSION

We affirm King's convictions for arson, one count of criminal threat, misdemeanor
criminal damage to property, assault, battery, and domestic battery. We reverse his
convictions and vacate his sentences for two counts of criminal threat and for felony
criminal damage to property.

Judgment of the Court of Appeals affirming the district court is affirmed in part
and reversed in part. Judgment of the district court is affirmed in part and reversed in
part.