Appeal from Jefferson District Court; GARY L. NAFZIGER, judge.
BY THE COURT
1. We review a claim that the trial court should be reversed because it failed to give a unanimity instruction in three steps. First, as a threshold matter, the appellate court reviews the entire record to determine whether the case involved multiple acts or a unified course of conduct. If this court finds the defendant's alleged conduct was unitary, then the analysis ends and the trial court is affirmed. If, however, the defendant's actions could have given rise to multiple counts of the charged crime, then it is a multiple acts case and this court proceeds to the next step of the unanimity error analysis.
2. In the second step of the analysis, the court looks to see whether an error occurred. If the State did not inform the jury as to which act it should rely upon during deliberations and the trial court did not instruct the jury that it must unanimously decide which specific act supported the conviction, error exists.
3. In the final step, the appellate court looks to see whether the error requires a reversal of the trial court's decision. In doing so, the court applies the " clearly erroneous" provision of K.S.A. 2013 Supp. 22-3414(3) and undertakes a results-based analysis. If the court is convinced that the jury would have reached a different verdict had the instruction error not occurred, then the error is reversible.
4. There is no single test for determining whether a multiple acts case exists. Rather, the court must look to the facts and the theory of the crime as argued to determine whether a jury verdict implicates unanimity issues.
5. Four factors assist in making this determination: (1) whether the acts occurred at or near the same time; (2) whether the acts occurred 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.
6. No party may challenge a trial court's giving or failure to give an instruction unless that party objects before the jury retires for deliberations, stating distinctly the matter to which the party objects and the grounds for the objection. In the absence of an objection, the claimed error is reversible only if the instruction or the trial court's failure to give the instruction was clearly erroneous. K.S.A. 2013 Supp. 22-3414(3).
7. To establish that the giving or failure to give an instruction was clearly erroneous, the reviewing court must determine whether there was any error at all. This requires demonstrating that giving the proposed instruction would have been both legally and factually appropriate, employing an unlimited review of the entire record. And if error is found on that basis, then the court moves to a reversibility inquiry in which it assesses whether it is firmly convinced the jury would have reached a different verdict had the instruction been given. The defendant maintains the burden to establish the degree of prejudice necessary for reversal.
8. A defendant who introduces evidence of prior bad acts during his or her own direct examination waives the right to a limiting instruction.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant.
Bethany J. Graves, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., PIERRON, J., and JOHNSON, S.J.
Daniel A. Crossett appeals his convictions for six counts of aggravated assault, two counts of endangering a child, and one count each of criminal damage to property, reckless driving, and failure to inform after a property accident. Crossett argues it was clear error for the trial court not to give a unanimity instruction for the counts of endangering a child. He also contends it was clear error for the trial court not to give a limiting instruction concerning prior crimes evidence under K.S.A. 2013 Supp. 60-455. Last, Crossett raises an Apprendi issue for purposes of preserving federal review. We affirm.
On Monday morning, June 19, 2012, Joseph Evans was heading to work at Accent Pet Grooming in Lawrence. Evans was riding in Scott Dennett's truck. Evans' great niece (A.M.) and great nephew (J.D.M.) were asleep in the back seat. Dennett needed to pick up Haillie Courter at Lakeside Village to give her a ride to work as well. On the way, Evans got a call from Courter asking if they could give Kimberly Gardner a ride to work. Gardner also worked at Accent.
Evans said that when they drove into Lakeside Village, Gardner was sitting in the middle of the street. She was upset and crying, and she said that Crossett was going to kill her. She repeated this in the truck. Soon thereafter, Courter also got in the backseat of the truck with A.M., J.D.M., and Gardner. As the truck headed down Ferguson Road toward Perry, Evans saw Crossett's red van approaching at a high rate of speed.
Evans testified Crossett was swerving all over the road. Crossett pulled up next to Dennett's truck and with his body half out the window, he yelled at them to pull over. Evans said at one point Dennett drove into the ditch to avoid a collision. Dennett eventually stopped the truck and Crossett began banging on the window and screaming, " I want Kim. I want Kim. I don't want nobody else." Evans thought the window was going to break. Evans yelled at Dennett to take ...