unanimity instruction in Kansas

2021To remedy this problem, the State must either elect which act it relies on for a conviction or the trial court must give a unanimity instruction, which tells the jury that it must agree upon the specific act that constitutes each crime. 297 Kan. at 978 .

2019Harris, 2016 WL 7325012 , at *8; see also King, 297 Kan. at 982 (a unanimity instruction was necessary unless the State elected the particular criminal act on which it relied, either explicitly or functionally).

2025In other words, "[i]f the district court has committed error in failing to give a unanimity instruction, that failure will be clearly erroneous, and thus reversible, if the reviewing court is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred." State v. Trujillo, 296 Kan. 625 , Syl. ¶ 2, 294 P.3d 281 (2013).

2025In other words, "[i]f the district court has committed error in failing to give a unanimity instruction, that failure will be clearly erroneous, and thus reversible, if the reviewing court is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred." State v. Trujillo, 296 Kan. 625 , Syl. ¶ 2, 294 P.3d 281 (2013).

2024As both parties note, Kansas appellate courts have held the failure to give a unanimity instruction is generally reversible error "except when the defendant presents a unified defense, e.g., a general denial." Voyles, 284 Kan. at 253 . "[I]n one of its purest forms," a unified defense presents "a mere credibility contest between the victims and the alleged perpetrator." 284 Kan. at 253-55 (noting that inconsistencies in victims' testimonies could confuse the jury and create lack of unanimity); see also State v. Trujillo, 296 Kan. 625, 631 , 294 P.3d 281 (2013) (noting presentation of a unified

2024As both parties note, Kansas appellate courts have held the failure to give a unanimity instruction is generally reversible error "except when the defendant presents a unified defense, e.g., a general denial." Voyles, 284 Kan. at 253 . "[I]n one of its purest forms," a unified defense presents "a mere credibility contest between the victims and the alleged perpetrator." 284 Kan. at 253-55 (noting that inconsistencies in victims' testimonies could confuse the jury and create lack of unanimity); see also State v. Trujillo, 296 Kan. 625, 631 , 294 P.3d 281 (2013) (noting presentation of a unified

2019A unanimity instruction is required "when the State charges one crime but relies on multiple acts to support that one crime." State v. King , 297 Kan. 955 , 978, 305 P.3d 641 (2013) (quoting State v. Sanborn , 281 Kan. 568 , 569, 132 P.3d 1277 [2006] ).

2019A unanimity instruction is required "when the State charges one crime but relies on multiple acts to support that one crime." State v. King , 297 Kan. 955 , 978, 305 P.3d 641 (2013) (quoting State v. Sanborn , 281 Kan. 568 , 569, 132 P.3d 1277 [2006] ).

2021Colston, 290 Kan. at 968-69 .

2014See Colston, 290 Kan. at 962 .

2007Incidents are factually separate when independent criminal acts have occurred at different times or when a later criminal act is motived by `a fresh impulse.' [2] 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 939 , 26 P.3d 1267 .

2007Incidents are factually separate when independent criminal acts have occurred at different times or when a later criminal act is motived by `a fresh impulse.' [2] 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 939 , 26 P.3d 1267 .

2024Inexplicably, the district court simply referred the jury back to the original written instructions without addressing the jury's actual inquiry." (Emphasis added.) Santos-Vega, 299 Kan. at 18 . 14 The court emphasized that the district court failed to remedy the jury's confusion: "The jury's question should have triggered recognition that a multiple acts problem presented itself and that a unanimity instruction was an appropriate response, which would have had no adverse consequences on review.

2014The test applied is whether the court is “firmly convinced that under the facts the jury would have returned a different verdict if the unanimity instruction had been given.” Santos-Vega, 299 Kan. at 18 .

2017Finally, the court determines whether the error was reversible or harmless. [Citation omitted.] When, as here, the defendant failed to request a unanimity instruction, the court applies the clearly erroneous standard provided in K.S.A. 2013 Supp. 22-3414(3). [Citation omitted.] Under this test, to find the error reversible, "'"[A]n appellate court must be firmly convinced that under the facts the jury would have returned a different verdict if the unanimity instruction had been given. [Citations omitted.]"'" State v. Castleberry, 301 Kan. 170, 185-86 , 339 P.3d 795 (2014). 13 Beltz contends th

2017Finally, the court determines whether the error was reversible or harmless. [Citation omitted.] When, as here, the defendant failed to request a unanimity instruction, the court applies the clearly erroneous standard provided in K.S.A. 2013 Supp. 22-3414(3). [Citation omitted.] Under this test, to find the error reversible, "'"[A]n appellate court must be firmly convinced that under the facts the jury would have returned a different verdict if the unanimity instruction had been given. [Citations omitted.]"'" State v. Castleberry, 301 Kan. 170, 185-86 , 339 P.3d 795 (2014). 13 Beltz contends th

2012See State v. Bailey, 292 Kan. 449, 458 , 255 P.3d 19 (2011); 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.”).

2012See State v. Bailey, 292 Kan. 449, 458 , 255 P.3d 19 (2011); 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.”).

2017See State v. Williams, 295 Kan. 506 , Syl. ¶ 5, 286 P.3d 195 (2012) (clearly erroneous reversibility standard applicable where instruction not requested).

2017See State v. Williams, 295 Kan. 506 , Syl. ¶ 5, 286 P.3d 195 (2012) (clearly erroneous reversibility standard applicable where instruction not requested).

2011The Smith court voiced concerns about a unanimous verdict but found no error since the juiy had apparently been polled as to their agreement on the overt act committed by the defendant. 268 Kan. at 230 .

2002See State v. Smith, 268 Kan. 222, 230 , 993 P.2d 1213 (1999).

2012Discussion In State v. Timley, 255 Kan. 286, 289 , 875 P.2d 242 (1994), this court established what has been referred to as the “alternative means rule” and its corollary “super-sufficiency requirement”: “ ‘[Wjhere a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged.

2012Discussion In State v. Timley, 255 Kan. 286, 289 , 875 P.2d 242 (1994), this court established what has been referred to as the “alternative means rule” and its corollary “super-sufficiency requirement”: “ ‘[Wjhere a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged.

2019More precisely, we must determine whether *1139 a jury instruction alleging several overt acts in furtherance of a conspiracy creates a multiple acts problem and thus requires a unanimity instruction. " 'Multiple acts' are legally and factually separate incidents that independently satisfy the elements of the charged offense." 300 Kan. at 598 , 331 P.3d 815 .

2019More precisely, we must determine whether *1139 a jury instruction alleging several overt acts in furtherance of a conspiracy creates a multiple acts problem and thus requires a unanimity instruction. " 'Multiple acts' are legally and factually separate incidents that independently satisfy the elements of the charged offense." 300 Kan. at 598 , 331 P.3d 815 .

2026If 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. . . . "'The final step [is] to determine whether the error was reversible.' [Citations omitted.]" State v. Harris, 310 Kan. 1026 , 1039, 453 P.3d 1172 (2019) (quoting State v. King, 297 Kan. 955, 979 , 305 P.3d 641 [2013]).

2024See State v. Harris, 310 Kan. 1026 , 1039, 453 P.3d 1172 (2019).

2018The jury, if its verdict is a unanimous recommendation of a sentence of a mandatory term of imprisonment of *201 40 years , shall designate in writing, signed by the foreman of the jury, the statutory aggravating circumstances which it found beyond a reasonable doubt. ..." (Emphases added.) Alford cites Reed , 256 Kan. at 566 -67 , 886 P.2d 854 , and State v. Kleypas , 272 Kan. 894 , 1060-64, 40 P.3d 139 (2001), as authority that the jury instructions and verdict form created an illegal sentence because they violate subsection (5) of K.S.A. 1993 Supp. 21-4624.

2018The jury, if its verdict is a unanimous recommendation of a sentence of a mandatory term of imprisonment of *201 40 years , shall designate in writing, signed by the foreman of the jury, the statutory aggravating circumstances which it found beyond a reasonable doubt. ..." (Emphases added.) Alford cites Reed , 256 Kan. at 566 -67 , 886 P.2d 854 , and State v. Kleypas , 272 Kan. 894 , 1060-64, 40 P.3d 139 (2001), as authority that the jury instructions and verdict form created an illegal sentence because they violate subsection (5) of K.S.A. 1993 Supp. 21-4624.

2004App. 2d 393 , 4 P.3d 1178 , rev. denied 269 Kan. 940 (2000), and State v. Barber, 26 Kan.

2001See Barber, 26 Kan.

2001In State v. Jones, 51 Cal.3d 294, 307 , 270 Cal. Rptr. 611 , 792 P.2d 643 (1990), the court observed that "[s]ome cases found harmless any error in failing either to select specific offenses or [to] give a unanimity instruction, if the record indicated the jury resolved the basic credibility dispute against the defendant and would have convicted the defendant of any of the various offenses shown by the evidence to have been committed." As in the case of R.L.G., Jr. v. State, 712 So.2d 348 (Ala. Crim.

2001In State v. Jones, 51 Cal. 3d 294, 307 , 270 Cal. Rptr. 611 , 792 P.2d 643 (1990), the court observed that “[s]ome cases found harmless any error in fading either to select specific offenses or [to] give a unanimity instruction, if the record indicated the jury resolved the basic credibility dispute against the defendant and would have convicted the defendant of any of the various offenses shown by the evidence to have been committed.” As in the case of R.L.G., Jr. v. State, 712 So. 2d 348 (Aa.

2017See 272 Kan. at 1076 -77 (citing Mills v. Maryland, 486 U.S. 367 , 108 S. Ct. 1860 , 100 L.

2017See 272 Kan. at 1076 -77 (citing Mills v. Maryland, 486 U.S. 367 , 108 S. Ct. 1860 , 100 L.

2008App. 2d 674 , 8 P.3d 1 , rev. denied 268 Kan. 885 (1999), which in an appeal of a 60-1507 denial found that a failure to give a unanimity instruction was structural error, requiring reversal.

2001The opinion stated: “When faced with allegations of multiple incidents of abuse, while the State may charge multiple counts, the State must elect at some point the incidents for which adequate proof has been presented or give a unanimity instruction (the ‘either/or rule’).” 27 Kan.

2025See State v. Akins, 298 Kan. 592, 618 , 315 P.3d 868 (2014).

2025See State v. Akins, 298 Kan. 592, 618 , 315 P.3d 868 (2014).