State v. Torres

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 101,285

STATE OF KANSAS,
Appellee,

V.

PEDRO D. TORRES,
Appellant.


SYLLABUS BY THE COURT

1.
Under K.S.A. 60-455, if a defendant's prior crime or civil wrong is so strikingly
similar in pattern or so distinct in method of operation as to be a signature, then it is
probative of the defendant's plan and potentially admissible. If it is not, then the evidence
has no probative value as plan evidence and the evidence is irrelevant and inadmissible if
offered for that purpose.

2.
On the facts of this case, the district court's admission of evidence that the
defendant had committed the offense of indecent liberties against a child many years
before the crime charged here was improper because there were insufficient similarities
between the two events.

3.
In a multiple-acts case, several acts are alleged and any one of them could
constitute the crime charged. In such a case, either the State must inform the jury which
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act it contends constitutes the crime or the court must instruct the jury that its members
must all agree on the specific criminal act.

4.
On the facts of this multiple-acts case, the district court's unanimity instruction
properly told the jury that its members must all agree on the specific criminal act to
convict the defendant.

Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion filed April
6, 2012. Reversed, and remanded with directions.

Reid T. Nelson, of Capital and Conflicts Appeals Office, argued the cause and was on the
briefs for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco
Foulston, district attorney, and Steve Six, attorney general, were with her on the briefs for
appellee.

The opinion of the court was delivered by

LEBEN, J.: Pedro Torres was convicted of two counts of rape against the 11-year-
old daughter of a woman who lived with Torres in Wichita. At trial, the State was
allowed to present evidence related to Torres' conviction nearly two decades earlier for
one count of indecent liberties with a child—evidence that was admitted to show Torres'
plan by evidence that he had such a similar method of committing such crimes that it
would be reasonable to conclude that he had committed this one based on the earlier one.

But our court has held that the prior crime must be "'so "strikingly similar" in
pattern or so distinct in method of operation as to be a "signature"'" for it to be admitted
for this purpose. State v. Prine, 287 Kan. 713, 735, 200 P.3d 1 (2009) (quoting State v.
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Jones, 277 Kan. 413, 423, 85 P.3d 1226 [2004]). Torres' prior crime was not sufficiently
similar to the later alleged rape to meet this test.

The victim of the earlier crime, who was 14 when it took place, testified that she
was a young teenage girl looking for attention that she got through sexual activity with
Torres, a neighbor, and they frequently had sexual relations before they were seen by
police in bed together at an area hotel. She testified that her mother, who was not dating
Torres, was aware of her daughter's relationship with Torres. The victim in the newer
case was 11 and lived in the same house with Torres, who was involved in a relationship
with the victim's mother. The victim in this case testified that Torres' advances were
unwelcome and caused her pain and that her mother didn't believe her when she told her
mother about the abuse; these events ended when the victim reported them to authorities.

The evidence of the earlier improper conduct was thus wrongly admitted in
evidence at Torres' trial, and we are not able to dismiss this error as harmless (i.e., as
having had no effect on the trial's outcome). We therefore must order a new trial.

Torres has raised several additional issues on appeal. Most of them relate to his
sentences and need not be considered because he must be retried and, if convicted,
resentenced. Until then, we cannot consider a challenge to Torres' now-unknown
potential sentence. Torres has raised one issue related to the instructions given to the jury
at his trial. We address that issue because it impacts a retrial on these charges.

FACTUAL BACKGROUND

To evaluate the admissibility of Torres' earlier conviction, we must first set out
sufficient facts to frame the parties' legal dispute. The victim in this case, V.H., lived with
her mother, Bertha R., and Torres in Wichita. Bertha had met Torres by telephone,
through Torres' sister, while Bertha was living in Mexico with Bertha's 18-year-old son,
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Daniel, and V.H. Torres traveled to Mexico to visit Bertha several times, and he
suggested that Bertha and V.H. come to live with him in Wichita. Bertha accepted the
offer in December 2006, and the two moved to Wichita; her son, Daniel, stayed in
Mexico.

Bertha had no relatives in Wichita and didn't work after moving to Kansas; Torres
provided the only household income. She testified that Torres "never let me talk with
anyone" and "never let me go anywhere alone" in Wichita. In April 2007, Daniel became
ill and Torres bought bus tickets so that Bertha and V.H. could visit him in Mexico. In
May, Torres joined them in Mexico, and all three returned to Wichita in July 2007.

In October 2007, V.H. approached one of her teachers, Martiza Gardner, and said
that Torres was molesting her. V.H. told Gardner that Bertha didn't believe this was
happening, but V.H. reported to Gardner that Torres had put his "thing" and fingers into
her private part. Interviews followed with school personnel and later with a police
detective and a social worker.

V.H. told the detective and social worker that Torres touched her chest and her
"private part" with his "private." She identified her "private part" as the area that included
her vagina and indicated the male "private" as the area that includes the penis, using a
diagram of male and female bodies. She then specifically said that Torres had touched
her "private area" with both his finger and his "private." When Torres used his finger, she
said it went inside her private part and went in a circular motion. She said that he had
kissed her mouth, cheeks, neck, and chest. V.H. said that after each encounter, which
occurred in her bedroom, her stomach hurt and her private part bled. She said Torres had
first touched her in this manner in January 2007, that it had occurred "five or six times,"
but that it didn't happen again after their return from Mexico in July. No medical
examination was done since the alleged activity had occurred months before.

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When V.H. testified in December 2007 at a preliminary hearing, she said that
Torres did these things not only before the trip back to Mexico but also after they had
returned in July. In fact, she testified that it would happen "[a]lmost every night." The
State ultimately amended its charge to allege one count of rape between December 1,
2006, and April 1, 2007—corresponding to the time frame before Bertha and V.H.
returned to Mexico—and a second count of rape between July 1, 2007, and October 31,
2007, after they had returned to Wichita.

At trial, V.H. again testified that the events had occurred many times, generally
around midnight in her bedroom. She would awaken to Torres pulling the covers off her
bed. She also testified that the same sexual acts (penetration with Torres' finger and
private part) occurred in Torres' guesthouse, which was behind his main house. She again
testified that the abuse took place both before and after she had returned briefly with her
mother to Mexico.

The jury heard testimony from V.H. and Bertha, as well as from school and police
personnel who had interviewed V.H. when she initially disclosed these events to them.
The jury also heard from Billie T., a 34-year-old woman who testified that she'd had
sexual relations with Torres three to four times a week when she was 14. The jury
convicted Torres on both counts of rape against V.H. The district court sentenced Torres
as an aggravated habitual sex offender under K.S.A. 2006 Supp. 21-4642 to life in prison
on each count, with the sentences to run concurrently.

ANALYSIS

I. The District Court Erred in Admitting Evidence of the Defendant's Prior Conviction.

Under the Kansas Rules of Evidence, established by statute, whether evidence
may be presented that a person committed some earlier crime or civil wrong is governed
by K.S.A. 60-455. This statute recognizes "the danger that the evidence [of a defendant's
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specific past action] will be considered to prove the defendant's mere propensity to
commit the charged crime." State v. Wells, 289 Kan. 1219, 1227, 221 P.3d 561 (2009).
Accordingly, the statute places limits on when such evidence may be presented.

We must determine whether evidence was properly admitted at Torres' April 2008
trial by applying the version of this statute, K.S.A. 60-455, that was in effect at the time
of the trial and also when Torres allegedly committed these crimes. It provides that
evidence of prior crimes and civil wrongs may not be admitted to prove a person's
general disposition to commit the charged crime, but it may be admitted for limited
purposes, such as to show the defendant's plan:

"Subject to K.S.A. 60-447 evidence that a person committed a crime or civil
wrong on a specified occasion[] is inadmissible to prove his or her disposition to commit
crime or civil wrong as the basis for an inference that the person committed another
crime or civil wrong on another specified occasion but, subject to K.S.A. 60-455 and 60-
488 such evidence is admissible when relevant to prove some other material fact
including motive, opportunity, intent, preparation, plan, knowledge, identity or absence
of mistake or accident." K.S.A. 60-455.

K.S.A. 60-455 allows the admission of otherwise inadmissible evidence when the district
court determines that its evidentiary value outweighs the potential for undue prejudice.
See State v. Richmond, 289 Kan. 419, 435-36, 212 P.3d 165 (2009).

We have established a three-part test for the district court to use in determining
whether evidence about a person's prior crimes or civil wrongs may be admitted under
K.S.A. 60-455, and for an appellate court to apply when reviewing these matters on
appeal. These steps were recently summarized in State v. Inkelaar, 293 Kan. 414, 424,
264 P.3d 81 (2011):
 First, the district court must determine whether the fact to be proven is material,
meaning that this fact has some real bearing on the decision in the case. The
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appellate court reviews this determination independently, without any required
deference to the district court.
 Second, the district court must determine whether the material fact is disputed and,
if so, whether the evidence is relevant to prove the disputed material fact. In
making this determination, the district court considers whether the evidence has
any tendency in reason to prove the disputed material fact. The appellate court
reviews this determination only for abuse of discretion.
 Third, if the fact to be proven was material and the evidence was relevant to prove
a disputed material fact, then the district court must determine whether the
probative value of the evidence outweighs the potential for undue prejudice
against the defendant. The appellate court also reviews this determination only for
abuse of discretion.
If the evidence meets all of these requirements, it is admitted, but in a jury trial the
district court must give the jury a limiting instruction telling the jury the specific purpose
for which the evidence has been admitted (and reminding them that it may only be
considered for that purpose). 293 Kan. at 424.

The district court ruled that Torres' past conduct was relevant to prove plan and
preparation, and it gave the jury a limiting instruction that the evidence of Torres' earlier
conduct could "be considered solely for the purpose of proving the defendant's
preparation and plan." In its appellate brief, the State offers no suggestion that the
evidence could be admitted to show preparation. And a claim not briefed is deemed
abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011). We therefore
examine only whether the evidence was properly admitted to show Torres' plan.

Plan evidence may be admitted under either of two theories.

In one, there is some direct or causal connection between the earlier conduct and
the crimes charged. Jones, 277 Kan. 413, Syl. ¶ 2. In such a case, since the two events are
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causally connected, proving the defendant's involvement in the earlier incident logically
tends to establish the defendant's involvement in the charged crime as well. But there is
no direct or causal connection here between Torres' 1988 relationship with Billie T. and
his alleged rape of V.H. in 2007, so we must look to the second theory.

Under the second theory, the two events do not have to be directly or causally
connected, but the method of committing the prior act must be so similar to the method
used in the charged crime that it is reasonable to conclude that the same individual
committed both acts. Jones, 277 Kan. 413, Syl. ¶ 2. In such a case, the method of
committing the act is so distinctive that even without a direct connection between the
events, the evidence logically tends to establish the defendant's involvement in the
charged crime.

In Prine, 287 Kan. 713, we carefully reviewed our cases under this second theory
with recognition that we had not always consistently stated how similar the methods must
be to meet admissibility standards. 287 Kan. at 730-35. We concluded that the best way
to state the standard was to require that the methods in the earlier and present cases be so
strikingly similar in pattern or so distinct in method of operation as to be a signature:

"[T]his standard governs examination of whether particular evidence has probative value
. . . . If a defendant's prior bad act is so strikingly similar in pattern or so distinct in
method of operation as to be a signature, then it is probative of defendant's plan in the
case at bar. If it is not, then the evidence has no probative value on plan and the evidence
is irrelevant if offered for that purpose. On appeal, we will review a district judge's
decision under the 'signature' standard for an abuse of discretion." (Citation omitted.) 287
Kan. at 735.

Even under the deferential standard for abuse-of-discretion review, see State v.
Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), it was error to admit evidence of the
1988 events involving Billie T. because those events simply are not sufficiently similar to
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the 2007 events alleged to have occurred involving V.H. The conduct in common
between the old events and the charged crime must be something more than the
similarities common to nearly all sexual-abuse cases. Prine, 287 Kan. at 731 (citing
Jones, 277 Kan. at 422-23, and State v. Davidson, 31 Kan. App. 2d 372, 384, 65 P.3d
1078, rev. denied 276 Kan. 971 [2003]). Here, there are not enough similarities to make
the two events "strikingly similar in pattern" or "so distinct in method of operation" as to
make the method of committing these acts the "signature" of the defendant, Torres. See
Prine, 287 Kan. at 735.

There are, of course, some similarities. Both girls were 14 or under; Torres had
sexual relations with Billie T. and is alleged to have done so with V.H., and the State
notes that Torres provided some financial support to both girls' mothers. But there are far
too many differences to meet the test for plan evidence:
 Torres' relationship with the victims began in different ways. He was merely a
neighbor to Billie T., but he started a committed relationship with V.H.'s mother
and V.H. called him "Dad."
 Billie T. testified that she was a young teenage girl looking for attention, which
she got from Torres, then a man in his forties. While such a relationship is
inherently coercive, it was significantly different than Torres' alleged relationship
with V.H. She testified that his actions were unwelcome and caused her pain.
 V.H. was 11 when Torres allegedly began to abuse her, while Billie T. was 14
when Torres began sexual activity with her and nearly 15 when that ended.
 The relationship between Torres and Billie T. ended only because authorities
spotted them together at a hotel, while V.H. reported Torres to authorities.
 Torres' financial support to the girls' mothers arose in significantly different
ways. Billie T.'s unemployed mother was Torres' neighbor, and she welcomed
some financial help after her husband left the country. V.H.'s mother worked and
supported her family before leaving Mexico, but testified that Torres did not let
her work in Wichita.
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The State suggests that we should ignore the rule we stated for plan evidence in
Prine because that decision was rendered after Torres' trial. But the Prine decision
interpreted the same version of K.S.A. 60-455 that was in place when Torres was tried
and when he allegedly committed his crimes; the trial in Prine occurred before Torres'
trial; and Prine reconciled our prior cases: it did not create a new rule that had never
before been applied. We therefore apply the Prine rule here—even though, as in Jones,
the evidence wasn't sufficient to establish similarity under any of the tests we had applied
before Prine under K.S.A. 60-455. See Jones, 277 Kan. at 423 (noting that evidence was
insufficient whether standard was "'signature'" or "'strikingly similar'" or "even 'similar
enough' for K.S.A. 60-455 purposes").

In sum, we have carefully reviewed the evidence regarding these two events. The
evidence of similarity is less here than in cases in which we have upheld the admission of
such evidence. See State v. Overton, 279 Kan. 547, 554, 112 P.3d 244 (2005) (finding
sufficient similarity where both victims were 14 years old, defendant met both at school,
discussed family problems with each, kissed and fondled each, hired each as babysitters
to provide opportunity to be alone, and raped each boy in similar locations in his house);
State v. Moore, 274 Kan. 639, 648, 55 P.3d 903 (2002) (finding sufficient similarity
where victims were of comparable age, defendant videotaped victims before fondling
their genital areas and exposing his penis, and both crimes occurred privately where
defendant "had control of the environment"); State v. Rucker, 267 Kan. 816, 826, 987
P.2d 1080 (1999) (finding sufficient similarity where victims were similar in age and
relationship to the defendant, sex acts were very similar, and defendant threatened to kill
pets of both victims if they disclosed the abuse); State v. Damewood, 245 Kan. 676, 678-
83, 783 P.2d 1249 (1989) (finding sufficient similarity given same pattern of conduct that
involved arranging time alone with young teenage boys, meeting them for beekeeping
activities, and performing similar sexual acts on each). We find the present case much
closer to those in which we have held the admission of plan evidence was improper. See
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Prine, 287 Kan. at 735-36 (finding similarity insufficient to admit plan evidence when
defendant performed different sex acts with each victim, even though the victims were
roughly the same age); Jones, 277 Kan. at 421-23 (finding similarity insufficient to admit
plan evidence when the sexual relationship started differently with each victim, different
sexual acts were performed, and the frequency of sexual events varied even though
victims had similar relationship to defendant). The district court abused its discretion by
admitting Billie T.'s testimony.

Even if evidence has been wrongly admitted under K.S.A. 60-455, that doesn't
automatically require setting aside a jury's verdict: the error still may be harmless. Prine,
287 Kan. at 736. So we must also determine whether the wrongful admission of this
evidence was harmless error. In accordance with K.S.A. 60-261, before we can declare an
error harmless, we must determine that it didn't affect a party's substantial rights—
meaning that it didn't affect the trial's outcome. Ward, 292 Kan. at 565. Because the
wrongful admission of evidence here doesn't implicate any of the defendant's
constitutional rights, to declare this error harmless we must be persuaded by the State (as
the party benefitting here from the wrongly admitted evidence) that there is no reasonable
probability that the error affected the trial's outcome. See State v. McCullough, 293 Kan.
970, Syl. ¶ 9, 270 P.3d 1142 (2012); Ward, 292 Kan. at 565.

Notably, the State made no argument in its brief that the admission of this
evidence would have been harmless if we rejected the State's position that it was properly
admitted. The failure to make that argument waives it. See McCaslin, 291 Kan. at 709.
Even if the State had briefed the issue, however, we could not find this error harmless.
There were substantial credibility issues in this case: V.H. admitted that her trial
testimony was different than what she had told police officers on two key points. First,
she told the police that Torres had touched her only five or six times, but she said at trial
that he'd done so almost daily. Second, she admitted having told police that the last such
event was in February 2007, while at trial she said that the last time was the day before
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she spoke to a teacher in October 2007. In addition, there was no physical evidence to
corroborate her testimony. We are unable to make the finding required to conclude that
the error was harmless, i.e., that there is no reasonable probability that the wrongful
admission of the evidence about Billie T. affected the trial's outcome.

The State also argues in a letter submitted under Supreme Court Rule 6.09 (2011
Kan. Ct. R. Annot. 49) that we should find the error harmless by applying a new version
of K.S.A. 60-455 that was enacted and became effective in 2009, after Torres was tried,
convicted, and sentenced, and after Torres had filed his appeal. We decline to do so here.

The State made no mention of the 2009 amendment to K.S.A. 60-455 in the brief
it filed in October 2009, 5 months after the statutory amendment took effect. There are
serious constitutional questions that would arise were we to apply a statutory change in
evidence law made after a criminal trial had been held so that crucial evidence—
inadmissible under the rules in place when the defendant was tried—magically became
admissible while the case was on appeal. In its most famous case interpreting the Ex Post
Facto Clause of the United States Constitution, the United States Supreme Court said that
the provision applied to "[e]very law that alters the legal rules of evidence, and receives
less, or different, testimony, than the law required at the time of the commission of the
offense, in order to convict the offender." Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L.
Ed. 648 (1798); see also Miler v. Florida, 482 U.S. 423, 429, 107 S. Ct. 2446, 96 L. Ed.
2d 351 (1987) (quoting Calder). The State's Rule 6.09 letter provides no legal argument
regarding whether retroactive application of the amended statute would violate the Ex
Post Facto Clause. Because the State's letter was not submitted until the last business day
before oral argument, the defendant's response, which argues that retroactive application
of K.S.A. 60-455 would violate the Ex Post Facto Clause, came after oral argument. We
therefore conclude that the State's claim that the 2009 statute should be applied when
considering whether evidence was admitted in error in Torres' 2008 trial is inadequately
briefed and therefore not properly before us in this case. See State v. Raskie, 293 Kan.
13
906, Syl. ¶ 5, 269 P.3d 1268 (2012) (failing to adequately brief issue waives it); Cooke v.
Gillespie, 285 Kan. 748, 758, 176 P.3d 144 (2008) (same).

Under the evidentiary rules in place when Torres was tried, important testimony
was admitted in error and that error cannot be ignored as harmless. Torres is therefore
entitled to a new trial.

II. The Defendant Has Not Shown Reversible Error in the Jury Instructions.

Torres makes two claims that the jury instructions given were in error.

First, before deliberations began, the district court gave the jury what we often
refer to as an "Allen-type" instruction, telling the jurors that they should try if at all
possible to reach a verdict. See Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L.
Ed. 528 (1896). Torres contends it was error to give this instruction. Because no
objection was made, however, Torres would have to show clear error in the giving of this
instruction, meaning that there must have been a real possibility that the jury would have
rendered a different verdict had the instruction not been given. See State v. Magallanez,
290 Kan. 906, 925, 235 P.3d 460 (2010).

Since the date of Torres' trial, we have concluded that it is error to give the Allen-
type instruction that was given to Torres' jury, but we have concluded in several cases
that it was not clear error. See State v. Washington, 293 Kan. 732, 739-42, 268 P.3d 475
(2012) (citing cases); State v. Salts, 288 Kan. 263, 266, 200 P.3d 464 (2009). We
conclude that we need not decide the issue in Torres' case. Because the case must be
retried, we presume that the district court in any retrial will follow Salt, Washington, and
our other cases holding that this instruction should not be given.

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Second, Torres argues that the district court's instruction on juror unanimity—a
pattern jury instruction that the jurors "must unanimously agree upon the same
underlying act"—was insufficient. Torres had argued at trial that the instruction should
have been modified to say "the same specific underlying act." To consider Torres'
argument, we must step back to consider why this unanimity instruction is given.

When the State relies on multiple acts to support one charge, a unanimity
instruction is generally required to make sure that all jurors have indeed agreed that the
defendant committed one of the specific acts alleged, although a unanimity instruction is
not required if the State adequately elects which act it is relying upon. State v. Sanborn,
281 Kan. 568, 569, 132 P.3d 1277 (2006); see also State v. Colston, 290 Kan. 952, 968-
69, 235 P.3d 1234 (2010). For this reason, a pattern jury instruction on unanimity has
been prepared, PIK Crim. 3d 68.09-B, and that pattern instruction was the basis for the
district court's instruction here:

"The State claims distinct multiple acts which each could separately constitute the crime
of rape. In order for the defendant to be found guilty of rape, you must unanimously
agree upon the same underlying act."

The parties agree that this is a multiple-acts case, recognizing that V.H. testified at
trial that Torres penetrated her either with a finger or his penis on several occasions and
at different locations during each time period charged as two criminal counts of rape. See
State v. Voyles, 284 Kan. 239, 244-45, 160 P.3d 794 (2007) (finding multiple acts when
conduct spanned several months and several locations). Thus, either a proper unanimity
instruction or a clear election by the State as to the specific act it relied upon was needed,
and the district court chose to address that need by using the pattern unanimity
instruction. The use of pattern instructions is encouraged, though not mandatory, because
deviating from the pattern instructions risks including erroneous language or omitting
15
words that may be essential to a clear statement of the law. See State v. Tully, 293 Kan.
176, 197, 262 P.3d 314 (2011).

We see no error here in using the pattern instruction's language, "same underlying
act," instead of the defendant's proposed language, "same specific underlying act." The
first definition of "same" in the American Heritage Dictionary is "[b]eing the very one;
identical." American Heritage Dictionary 1550 (5th ed. 2011). The instruction's reference
to "the same underlying act" was sufficiently precise to tell the jury what its members
needed to conclude to convict, and Torres does not claim that the State's closing
argument misled the jury in any way on this point.

Since there may be a retrial, we note one way in which the unanimity instruction
could be appropriately modified when the State relies upon multiple acts to support its
charge and, as here, there is more than one count in which evidence of multiple acts was
presented. In such cases, it would be better practice to modify the end of the pattern
instruction to read: "you must unanimously agree upon the same underlying act for each
count." That additional language, "for each count," would make even clearer that the
unanimity instruction applies separately to each count.

Some additional factors in Torres' case support the conclusion that there was no
instruction error here. The evidence in Torres' case consisted not only of multiple
occasions on which sexual acts were said to have occurred during each charged time
period but also of two types of penetration. The jury asked during deliberations whether it
could submit a verdict on both digital and penile penetration, and the court responded
(after consultation with counsel) that it could. The jury then indicated in its verdict that it
had found that both digital and penile penetration had occurred during each of the
charged time periods.

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The jury did not have to agree on the specific date of either offense, or even the
specific location, so long as it concluded that the offense occurred in Sedgwick County
during the time frame charged. See Colston, 290 Kan. 952, Syl. ¶ 4. The jury needed only
to unanimously conclude that one penetration, either digital or penile, occurred during
each of the charged time frames, and the jury was told that it must "unanimously agree
upon the same underlying act." The jury also concluded that both digital and penile
penetration had occurred during each time frame charged. We find no error in the jury
instruction on this point.

III. The Issues Defendant Raises Regarding His Sentence Are Moot.

Torres raises two additional issues—that he should not have been sentenced as an
aggravated habitual sexual offender and that the sentence he received constituted cruel
and unusual punishment—that relate only to his sentence. Because the case is being
remanded for a new trial, Torres' convictions and sentences are, of course, set aside. We
cannot forecast the result of that new trial, and challenges to Torres' prior sentences are
now moot. See State v. Miller, 293 Kan. 46, 54, 259 P.3d 701 (2011); State v. Vaughn,
254 Kan. 191, 205, 865 P.2d 207 (1993).

The judgment of the district court is reversed, and this case is remanded to the
district court for further proceedings consistent with this opinion.

Davis, C.J., not participating.
LEBEN, J., assigned.