State v. De La Torre, 300 Kan. 591

De La Torre was tried first for abuse of a child and felonious murder; the jury convicted on abuse but deadlocked on felony murder; mistrial on the felony-murder charge occurred.
Evidence showed multiple potential acts of abuse within Aug. 15–Sept. 6, 2009, and the district court gave no unanimity instruction or election of a specific act.
The State conceded multiple-acts evidence, but De La Torre argued the absence of a unanimity instruction violated his right to a unanimous verdict; the State contended a unified defense negated reversible error.
On retrial for felony murder, the State again presented essentially the same evidence, and De La Torre challenged the court’s failure to instruct on a lesser included offense and to address sufficiency.
The court held the first-trial abuse conviction reversed for unanimity error and remanded; the second-trial felony murder conviction upheld despite prosecutorial misconduct, finding it harmless; statutes regarding lesser included offenses were interpreted to foreclose a lesser-degree instruction for felony murder, and retroactivity issues were resolved in favor of the State.
Procedural posture indicates the appeal followed convictions in two trials with the outlined challenges and remedies.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Unanimity instruction in first trial	De La Torre—unanimity instruction required due to multiple acts	State—unified defense avoided reversible error	Reversed for unanimity error; abuse conviction remanded
Evidence of multiple acts supporting abuse	Evidence showed separate episodes of abuse	Not clearly separate acts; defense denied involvement	Error reversible; abuse conviction reversed
Lesser included offense in second felony-murder trial	Court should have instructed on reckless second-degree murder	Amendments retroactive; no lesser offense applies	No error; retroactivity and Berry/Todd controls foreclose lesser-included instruction
Prosecutorial misconduct at second trial	Misconduct undermined fairness	Misconduct not prejudicial; harmless in this context	Not reversible; overall conviction affirmed with remand on related issues

State v. Foster, 290 Kan. 696 (2010) (unanimity in multiple acts analysis guidance)
State v. Davis, 275 Kan. 107 (2003) (unanimity/alternative means considerations in KS)
State v. Voyles, 284 Kan. 239 (2007) (unanimity instruction requirements; multiple acts)
State v. Santos-Vega, 299 Kan. 11 (2014) (clear and obviously erroneous/unanimity standard)
State v. Trujillo, 296 Kan. 625 (2013) (clarifies unanimity and clearly erroneous standard)
State v. King, 299 Kan. 372 (2014) (framework for multiple acts and unanimity)
State v. Berry, 292 Kan. 493 (2011) (abrogated by statutory changes on lesser included offenses)
State v. Todd, 299 Kan. 263 (2014) (retroactivity of 2013 amendments on felony murder)
State v. Plummer, 295 Kan. 156 (2012) (precedent on lesser included offenses in felony murder)
State v. Brown, 295 Kan. 181 (2012) (statutory interpretation; alternative means doctrine)
State v. Ahrens, 296 Kan. 151 (2012) (driving-under-the-influence constructs; elements analysis)
State v. Carr, 265 Kan. 608 (1998) (earlier view on alternative means in abuse of a child context)
State v. Cheffen, 297 Kan. 689 (2013) (inherently dangerous felony framework; not creating alternative means)
State v. Akins, 298 Kan. 592 (2014) (prosecutorial remarks about credibility; limits)
State v. Gilman, - (-) ((not cited; placeholder to indicate absence in record))