State v. King, 297 Kan. 955

Background

On June 20, 2006, Kameron King confronted family and acquaintances at Kelly Riley’s home: threats to shoot and to burn property, physical altercations, and later a fire destroyed the house. King was arrested days later.
Jury convicted King of: arson; three counts of criminal threat; felony and misdemeanor criminal damage to property; assault; battery; and domestic battery. Sentenced to 63 months.
On appeal, the Court of Appeals affirmed in part and found some errors harmless; King petitioned for review to the Kansas Supreme Court raising eight claims (including multiplicity of criminal-threat counts, unanimity for felony damage charge, presence at jury communications, K.S.A. 60-455 evidence admission, Allen instruction error, and Apprendi challenge).
Kansas Supreme Court reversed two criminal-threat convictions and the felony criminal-damage conviction, affirmed the remaining convictions, and vacated corresponding sentences for the reversed counts.
Reversals rested on (1) unit-of-prosecution: a single communicated threat is one offense even if multiple people perceive it; and (2) lack of jury unanimity where the State relied on multiple, distinct acts without election or unanimity instruction.

Issues

Issue	King’s Argument	State’s Argument	Held
Admission of other-crimes evidence under K.S.A. 60-455 / mistrial	Evidence of threats to Amanda and gun reference was barred by K.S.A. 60-455 and warranted mistrial	Evidence related to the same occasion (res gestae) and was limited to acts on June 20, so admissible	No error: evidence concerned same transaction and was admissible; mistrial denied
Defendant’s presence when judge answered jury question (K.S.A. 22-3420(3) / Sixth Amendment)	Judge answered jury question outside King’s presence without waiver, violating statutory and constitutional right to be present	Error was harmless because answer used ordinary definitions and intent instructions existed elsewhere	Statutory/constitutional error occurred but was harmless as to remaining convictions (Chapman standard applied)
Multiplicity / unit of prosecution for criminal threat (K.S.A. 21-3419(a)(1))	Multiple convictions for one orally communicated threat (perceived by several people) violate double jeopardy; unit is single communicated threat	Unit should be each person who perceives/comprehends the threat (or separate targets)	Held unit of prosecution is the single communicated threat; multiple convictions for one communicated threat violated double jeopardy — two criminal-threat convictions reversed; one affirmed
Unanimity instruction for felony criminal damage to property (multiple acts)	Two distinct ramming incidents (separate acts) supported the felony count; failure to give unanimity instruction violated right to unanimous verdict	Events were part of a continuous course; alternatively defense presented a unified/general denial so harmless	Court found multiple distinct acts, no election by State, and nonunanimity was prejudicial; felony damage conviction reversed

Key Cases Cited

State v. Woolverton, 284 Kan. 59 (discusses "communicated" meaning perceived and comprehended)
State v. Gunzelman, 210 Kan. 481 (statute proscribes threats whether directed generally or to multiple persons)
State v. Schoonover, 281 Kan. 453 (unit-of-prosecution analysis; focus on nature of proscribed conduct)
Bell v. United States, 349 U.S. 81 (rule of lenity; legislative intent must be clear to authorize multiple punishments)
State v. Voyles, 284 Kan. 239 (unanimity instruction required when multiple acts could support one charge)
State v. Williams, 295 Kan. 506 (framework for reviewing unrequested jury-instruction errors)
State v. Herbel, 296 Kan. 1101 (K.S.A. 22-3420(3) requires jury inquiries about law/evidence be handled in defendant’s presence; Chapman harmless-error analysis)
State v. Ward, 292 Kan. 541 (federal constitutional harmless-error standard)