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Originally filed: July 23, 2010 Last Revision: August 10, 2010

IN THE SUPREME COURT OF THE STATE OF KANSAS No. 100,005 STATE OF KANSAS, Appellee, v. SANFORD COLSTON, Appellant.

SYLLABUS BY THE COURT 1. In a multiple acts case, several acts are alleged and any one of them could constitute the crime charged. In order to ensure jury unanimity as to the specific act for which the defendant is charged, the trial court must either require the State to elect the particular criminal act upon which it will rely for the conviction or instruct the jury that all jurors must agree that the same underlying criminal act has been proven beyond a reasonable doubt.

2. This court will apply a three-part test to determine when a multiple acts situation has occurred such that the jury must agree on the same underlying criminal act. First, the court must determine if the case truly involves multiple acts, i.e., whether the defendant's conduct was part of one act or represents multiple acts which are separate and distinct from each other. Second, the court must consider whether error occurred, i.e., whether there was a failure by the State to elect an act or a failure by the trial court to instruct. Third, the court must determine whether the error is reversible.

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3. The threshold question in a multiple acts analysis is whether the defendant's conduct is part of one act or represents multiple acts which are separate and distinct from each other. There is no single test for whether conduct constitutes one act or separate and distinct multiple acts. Rather, the courts must look to the facts and the theory of the crime as argued to determine whether a jury verdict implicates unanimity issues. Whether a case is a multiple acts case is a question of law over which an appellate court has unlimited review.

4. Generally, the exact date that an offense was allegedly committed is not an element of the crime. Where a defendant is not misled or prejudiced in making his or her defense by the allegation of when the crime occurred, a conviction may properly follow upon sufficient proof that the crime was committed at any time within the period of the statute of limitations.

5. In a multiple acts case, the State fails to properly elect the act it is relying upon by arguing merely that only one act supports the charge. The State's argument that only one act supports the charge is not the same as informing the jury that it cannot consider evidence of other acts supporting the same charge or that it must agree on the same underlying criminal act.

6. In a multiple acts case, whether an error is reversible is governed by harmless error analysis. The ultimate test for harmlessness when a unanimity instruction was not requested is the clearly erroneous standard articulated by the Kansas Legislature in K.S.A. 22-3414(3). Instructions are clearly erroneous only if the reviewing court is firmly

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convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.

7. An appellate court may consider a multiplicity issue raised for the first time on appeal in order to serve the ends of justice or to prevent a denial of fundamental rights.

8. The issue of multiplicity is a question of law and an appellate court's review is unlimited.

9. Multiplicity is the charging of a single offense in several counts of a complaint or information. 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

Download State v. Colston 100037 State v. Sandberg.pdf

Kansas Law