State v. Redburn

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NOT DESIGNATED FOR PUBLICATION

No. 112,411

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

EVERETTE R. REDBURN, SR.,
Appellant.


MEMORANDUM OPINION

Appeal from Lane District Court; BRUCE T. GATTERMAN, judge. Opinion filed February 26,
2016. Affirmed and remanded with directions.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Douglas W. McNett, of Larned, and Derek Schmidt, attorney general, for appellee.

Before MALONE, C.J., PIERRON, J., and WALKER, S.J.

Per Curiam: Everette R. Redburn, Sr., appeals his convictions of aggravated
assault and criminal threat. He argues: (1) The district court erred in failing to give a
unanimity instruction, (2) the district court abused its discretion by allowing the State to
amend its complaint during the trial, and (3) the journal entry of sentencing did not
accurately represent what was announced at sentencing. Finding no error in the first two
issues, we affirm the convictions but remand for correction of the journal entry of
sentencing.


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FACTS

Redburn had a very strained relationship with his son, Everette Redburn, Jr.
(E.R.). It began when E.R. was a child and chose to live with his grandparents while
Redburn was in the service. More recently, Redburn was upset by E.R.'s involvement in a
legal case that resulted in Redburn's other son losing custody of his children. At some
point, Redburn asked E.R. either to give him $50,000 or to cosign a $50,000 loan but
E.R. did not do so. E.R.'s wife even threatened to call the police when Redburn came
over one day.

On July 12, 2013, around 3:30 p.m., Redburn called the Lane County Sheriff's
Office to report allegations of sexual misconduct against E.R. involving Redburn's niece
which took place 20 to 25 years ago in Scott County. Deputy Brian Kough responded and
told Redburn to have the victim report the incident in Scott County. Redburn was
dissatisfied with that response and reportedly told Kough that he would take matters into
his own hands. Kough cautioned him that it could lead to him being charged with a
crime. Redburn later denied making the statement.

Around 6 p.m., E.R., his daughter and son-in-law, Jessica and Derek Reinerio, and
his 18-month-old grandson were at E.R.'s house, about to head to the fair. Derek had
gone out earlier to put the car seat in place and was waiting for the others in the driver's
seat. E.R., Jessica, and his grandson were heading to Jessica's car when Redburn arrived
and parked his car behind hers.

According to E.R., Redburn got out of his car and began saying that E.R. was a
"lying son of a bitch" and greedy. The testimony is not clear from the record, but either
E.R. or Jessica asked Redburn why he was there. They both testified that Redburn
answered that he was there to kill E.R. Jessica then pounded on her car and told her
husband to get out of the car.
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Jessica testified that she approached Redburn while holding her son and told him
to leave; Redburn said that nobody cared about her. She replied that nobody cared about
him either. Redburn then allegedly took out a 10-inch kitchen knife and pointed it at
Jessica. According to E.R. and Derek, Jessica was standing about a 1 1/2- to 2-feet away
from Redburn. Jessica then fled with her son behind the house, returning only to get her
cell phone from the car to call the police. Jessica later testified that she was very scared at
the time.

According to E.R., he and Redburn were talking when Redburn dropped the knife.
E.R. kicked or tossed the knife over to Derek, who put it on the car hood near the
windshield wipers. E.R. said he told Redburn that the cops were coming and offered
Redburn a ride home. According to E.R., Redburn then hit him on his right ear. As the
police arrived, Redburn allegedly said that once he got out of jail, he would get a gun and
come back and kill everyone.

Sheriff Steven Edler was the first to arrive and spoke with E.R., Derek, and
Jessica. Edler noted that E.R. and Redburn were standing side-by-side and not fighting or
arguing when he arrived. Deputy Kough then arrived and took Redburn aside and spoke
to him. Kough testified that that while patting Redburn down, Redburn "told me he had
intentions with that knife to kill Everette, Jr." Kough believed that Redburn was
intoxicated because he stumbled, had slurred speech, was slow in reacting, and smelled
like alcohol. Kough then arrested Redburn based on his statement that he intended to kill
E.R. He also testified that Redburn said he regretted what he had done while in the police
car.

Redburn testified to his version of the events. He said that after speaking with
police about the sexual abuse allegations, he kept thinking about it while he prepared
dinner for his wife and decided to go speak to his son. According to Redburn, as soon as
he got to E.R.'s house, Jessica said she was calling the police while Redburn went over to
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confront his son about the allegations. Redburn testified that E.R. then shoved him
against the car and that is when he realized he had absentmindedly put the kitchen knife
in his back pocket, blade facing up. He then took the knife out of his pocket to throw it
aside when he was tackled by E.R. and Derek. Redburn said he and E.R. then began
talking until police arrived. Redburn denied ever threatening Jessica, Derek, or E.R. He
also denied being drunk or making any statements to police about wanting to kill E.R.

Redburn was charged with aggravated assault, criminal threat, and battery. A jury
trial was held on April 29-30, 2014. The jury convicted Redburn of aggravated assault
and criminal threat.

In June 2014, the district court sentenced Redburn to 12 months in prison for the
aggravated assault conviction and 6 months for the criminal threat conviction to run
consecutively, resulting in a total underlying sentence of 18 months. The court then
suspended the sentences and imposed 24 months' probation for the aggravated assault
conviction to run concurrent with a 12 months' probation for the criminal threat
conviction. The journal entry of judgment provided that the underlying prison sentence
was 24 months.

Redburn now appeals to this court.

ANALYSIS

Redburn first argues that his criminal threat conviction should be reversed because
the State presented evidence of two acts that each could have constituted the crime of
criminal threat and did not elect a single act upon which to proceed nor did the district
court give a unanimity instruction. He suggests that the jury could have relied on two
separate acts in convicting him of criminal threat: (1) the threat to kill E.R. when he first
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arrived at E.R.'s house or (2) the threat to come back with a gun and kill everyone while
police were arriving.

In Kansas, criminal defendants have a right to a unanimous jury verdict. See
K.S.A. 22-3421; K.S.A. 22-3423(1)(d); State v. Santos-Vega, 299 Kan. 11, 18, 321 P.3d
1 (2014). When the State has alleged the defendant committed multiple acts and any one
of them could constitute the crime charged, there is the potential for uncertainty as to
whether the jury unanimously agreed on a particular act that constituted the crime
charged. State v. De La Torre, 300 Kan. 591, 595, 331 P.3d 815, cert. denied 135 S. Ct.
728 (2014). To ensure jury unanimity in these cases (known as multiple acts cases), the
district court must instruct the jury that it must unanimously agree on the specific act
constituting the charged crime or the State must adequately elect which act it is relying
upon for conviction; failure to do so is error. State v. Akins, 298 Kan. 592, 618, 315 P.3d
868 (2014); State v. Voyles, 284 Kan. 239, Syl. ¶ 2, 160 P.3d 794 (2007); State v.
Crossett, 50 Kan. App. 2d 788, 793, 332 P.3d 840 (2014), rev. denied 302 Kan. __
(August 20, 2015).

The district court raised the issue of multiple acts at the close of the State's
evidence at trial, noting the two statements. The State replied that it was electing to
prosecute based on the second statement that Redburn would come back with a gun and
kill everyone. The district court judge stated that "with the understanding that the election
is going to be made to the jury that that's what the State is relying on, I don't think there's
a need for that multiple acts instruction on criminal threat."

In analyzing multiple acts cases, this court follows a three-part test. State v. King,
297 Kan. 955, 978-84, 305 P.3d 641 (2013). First, this court must determine whether the
case even involves multiple acts. De La Torre, 300 Kan. at 596. This a question of law
over which the appellate court exercises unlimited review. Santos-Vega, 299 Kan. at 18.
If the court decides multiple acts were involved, the next question is whether error was
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committed because either the district court failed to instruct the jury to agree on the
specific act for each charge or the State failed to inform the jury which act to rely upon
during its deliberations. Finally, if error was committed, this court must determine
whether the error was harmless. 299 Kan. at 18.

The first step is determining whether the case involves multiple acts. Four factors
are relevant in analyzing whether a defendant's conduct was one act or multiple, separate
acts: "'(1) whether the acts occur at or near the same time; (2) whether the acts occur 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.'" King, 297 Kan. at 981 (quoting State v. Schoonover,
281 Kan. 453, 507, 133 P.3d 48 [2006]). The parties agree that there were two separate,
distinct acts. Given that the threats were made at different times, directed at different
people, and motivated by different events, this case clearly involves multiple acts.

Because multiple acts were involved and the district court did not give a unanimity
instruction, error occurred unless the State elected, either explicitly or functionally, the
particular criminal act upon which it relied. See King, 297 Kan. at 983. Kansas courts
have generally held that the State can functionally elect a particular act by focusing its
opening statement and closing arguments on the act upon which the jury is to rely on to
convict the defendant. State v. Moyer, 302 Kan. 892, Syl. ¶ 7, 360 P.3d 384 (2015); State
v. Dickson, 275 Kan. 683, 696-97, 69 P.3d 549 (2003); State v. Fulton, 28 Kan. App. 2d
815, 821-22, 23 P.3d 167, rev. denied 271 Kan. 1039 (2001). But in State v. Colston, 290
Kan. 952, 969, 235 P.3d 1234 (2010), the Kansas Supreme Court said that merely
focusing arguments is not a sufficient election because "this is not the same as informing
the jury that it could not consider evidence of other acts supporting the same charge or
that it must agree on the same underlying criminal act." Nevertheless, in Moyer, the
court's latest consideration of the issue, it held that the State made a functional election
for most of the charges by focusing its closing arguments on a specific sexual act on a
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specified day for each charge, observing there was "no room for jury confusion." 302
Kan. at 911-12. For one of the counts, however, the court found the jury may have been
uncertain about which act it was to rely on. In its closing arguments, the State told the
jury that the criminal sodomy charge was supported by evidence that the victim had
performed oral sex on the defendant on a particular day but the victim had testified that
she had performed two acts of fellatio that day. As such, the court could not be sure that
the jury was unanimous but it ultimately found the State's ineffective election was
harmless and did not impact the outcome. 302 Kan. at 912-13.

Redburn cites portions of the State's closing arguments that refer to the first
statement to suggest that the State did not elect an act. He also argues that the State's
functional election should provide the same level of information as the unanimity
instructions, particularly that the State inform the jury that it must agree on the
underlying act. The State counters that Redburn cited many portions out of context and
that its closing argument sufficiently constituted an election, negating the need for a
unanimity instruction.

To resolve this dispute, this court must first review the State's opening statement
and closing arguments. See Moyer, 302 Kan. at 911. The State's opening statement does
not specify which of the two statements the State is relying on to support the criminal
threat charge, noting only that the facts of the case support the charge. Its closing
arguments detailed the evidence and testimony that the jury should rely on to support
each element of each charge, like a checklist. The closing arguments reference Redburn's
first statement that he was there to kill E.R. but in support of the aggravated assault
charge:

"Yesterday the evidence came in that showed that when [Redburn] got there he
briefly argues, he trades insults with his [granddaughter]. He also made a threat that he
was going to kill her father. And he pulls out a knife, letting her know that he has the
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means to do that. That is . . . significant right there when as she said, it was—she was half
way between the court reporter and where she was sitting. That's how close [she] and [her
son] were.
"Now, picture this for a moment . . . . [Jessica's] got [her son] on her right hip.
She's got grandpa right here. Grandpa is drunk, giving threats out as to what he's going to
do, that he's going to kill someone, and then he brings out a knife.
. . . .
"Now, we'll move on to the elements of the crime. The State has charged
[Redburn] with aggravated assault for what I was just describing. That—and here's your
checklist. . . .
"That [Redburn] knowingly placed a person in reasonable apprehension of
immediate bodily harm.
"So, when Jessica was confronted with a drunk grandpa wielding a knife and
making threats, she was in reasonable apprehension of bodily harm."

In regards to the criminal threat charge, the State said the following:

"Now, the next crime . . . [f]or which [Redburn] is charged [is] criminal threat.
We have to show that [Redburn] threatened to commit violence and communicated the
threat with the intent to place another in fear.
"Well, when the deputies start arriving . . . , there was the statement that came out
yesterday, that they are arresting me now, but I will get a gun and come back and kill
you.
"Let's think about that for a minute. Of what is being said after everything else
has happened. He had already come to the farm, armed with a knife, and according to one
of our law enforcement officers he was drunk. And through the course of that
information, somehow the knife got on the ground, and he wasn't successful in
concluding his goal.
"Doesn't it make sense to you that anyone standing there would believe he's
coming back with a gun when he has a chance to finish what he started? That's what he's
telling everybody. That's what he's saying to his family. So you can check that one off."

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Redburn also notes the State's reference to Kough's sworn testimony that Redburn
said he came out there to kill E.R. to suggest that the State did not make an election. The
State did not refer to Kough's statement to support any particular charge but rather to
diminish Redburn's credibility after Redburn's closing arguments, noting that "[Kough's
statement] completely contradicts what [Redburn] just told you on the stand." The State
argued to the jury that Kough was the "objective person in this whole set of facts, that's
showing you which of these two views of what happened out there is true."

By directing the jury to rely on the second statement to support the criminal threat
charge in its closing arguments, the State was clearly attempting to make an election or
its functional equivalent. Although the State did not inform the jury that it could not
consider the other threat or that it must unanimously agree on the act, such information is
not required if there is little risk of jury confusion. See Moyer, 302 Kan. at 911-12. It is
unlikely here that the jury was confused about which statement the State was prosecuting
as criminal threat. We find that the State adequately elected to prosecute Redburn for
criminal threat based on the second statement and so no error occurred.

Based upon our finding of no error, it is unnecessary for us to perform the rest of
the analysis. But even if we were to find error in the district court's failure to give a
unanimity instruction, we note that Redburn did not request such a jury instruction at
trial.

Under K.S.A. 2015 Supp. 22-3414(3), if a party fails to request an instruction or to
object to the failure to give a jury instruction at trial, this court evaluates whether the
failure to give an instruction was clearly erroneous. State v. Williams, 295 Kan. 506, 511-
13, 286 P.3d 195 (2012). Under the clear error test, the reviewing court will only reverse
when it is firmly convinced that the jury would have reached a different verdict had the
instruction error not occurred. State v. Sisson, 302 Kan. 123, 129, 351 P.3d 1235 (2015)
(citing Williams, 295 Kan. 506, Syl. ¶¶ 4-5); State v. Trujillo, 296 Kan. 625, 631, 294
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P.3d 281 (2013) (adopting Williams language and framework in evaluating whether
failure to give a unanimity instruction was clear error).

Redburn contends that because the court raised and addressed the multiple acts
issue on its own, this court should apply the harmless error standard set out in State v.
Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). Under the
harmless error standard, an error is harmless only if the error did not affect the trial's
outcome. 292 Kan. at 565. If the error implicates a constitutional right, before a Kansas
court can declare the error harmless it must be persuaded beyond a reasonable doubt that
there was no impact on the trial's outcome; but if the error implicates a statutory right, the
court must only be persuaded that there is no reasonable probability that the error
impacted the outcome. 292 Kan. at 565. Generally, the harmless error standard only
applies when the complaining party raised the jury instruction issue at the trial court. See,
e.g., Moyer, 302 Kan. at 908-09; State v. Plummer, 295 Kan. 156, 161-63, 283 P.3d 202
(2012). Redburn cites no authority that the court raising the multiple acts issue itself
entitles him to the harmless error standard but notes that the matter was "fully considered
and ruled upon by the district court." Yet, he could have objected and requested the court
to give a unanimity instruction after the State's closing arguments if he felt that the State
failed to make an election as it had promised. For that reason, in essence Redburn failed
to object at the trial court, and the clear error standard should apply in this case.

Applying the clear error test, we would need to determine if we would be firmly
convinced that the jury would have reached a different outcome if the instruction had
been given. In Voyles, the Kansas Supreme Court held that failure to give a unanimity
instruction in a multiple acts case is reversible error except when the defendant has
presented a unified defense by generally denying the allegations. 284 Kan. at 253. More
recently, the court clarified that even if a defendant presents a unified defense, the failure
to instruct may still constitute reversible error but noted that a defendant's defense
strategy remains an "important and compelling factor" to consider. Trujillo, 296 Kan. at
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631. The reviewing court also considers whether inconsistencies in a victim's testimony
could lead to jury confusion and lack of unanimity even if the defendant generally denies
wrongdoing. See King, 297 Kan. at 983; State v. Foster, 290 Kan. 696, 716, 233 P.3d 265
(2010).

In this case, Redburn presented a unified defense because he completely denied
threatening anyone. E.R., Derek, and Jessica all testified consistently at trial about the
events, and their testimony echoed what they said at the preliminary hearing and what
they told police on the scene. We are not firmly convinced that the jury would have
reached a different outcome if the instruction had been given. If the State's election was
ineffective, any error was harmless.

In his second issue on appeal, Redburn argues that the district court should not
have allowed the State to amend the charge for aggravated assault to name a specific
victim during the trial because it prejudiced his substantial rights. The State contends that
the district court did not abuse its discretion in allowing the amendment because the
amendment did not prejudice Redburn's substantial rights.

Under K.S.A. 22-3201(e), "[t]he court may permit a complaint or information to
be amended at any time before verdict or finding if no additional or different crime is
charged and if substantial rights of the defendant are not prejudiced." In determining
whether a complaint or information can be amended, this court, like the district court,
must ask itself: (1) Did the amendment charge an additional or different crime? and (2)
Were the substantial rights of the defendant prejudiced by the amendment? State v.
Ransom, 288 Kan. 697, 715-16, 207 P.3d 208 (2009).

Whether the amendment allowed by the district court violated K.S.A. 22-3201(e)
is reviewed for an abuse of discretion. State v. Holman, 295 Kan. 116, 145, 284 P.3d 251
(2012) (citing State v. Bischoff, 281 Kan. 195, 205, 131 P.3d 531 [2006]). A court abuses
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its discretion when no reasonable person would agree with its decision or its decision is
based on an error of law or fact. State v. Pfannenstiel, 302 Kan. 747, 760, 357 P.3d 877
(2015); Holman, 295 Kan. at 145. The defendant has the burden to establish that the
district court abused its discretion in allowing the State to amend the complaint. Biscoff,
281 Kan. at 205.

At the close of the State's evidence, the judge, prosecutor, and defense attorney
held the preliminary instruction conference. The State announced its intention to request
that the court allow it to amend the aggravated assault charge in the complaint because it
did not name a specific victim. The complaint for Count 1 aggravated assault originally
charged: "That on or about 7/12/2013, the above named defendant, . . . [did] . . .
unlawfully and knowingly plac[e] another person in reasonable apprehension of
immediate bodily harm with a deadly weapon, to-wit: A 10 INCH KITCHEN KNIFE."

Redburn's attorney objected and moved for a directed verdict for the aggravated
assault charge for failure to name a specific person. The parties agreed to take up the
matter the next day. The following morning, the State sought to amend the charge to
name Jessica as the victim of the aggravated assault. The defense attorney again objected
and requested dismissal of the charge.

In ruling on the motion to amend the charge, the district court noted that under
K.S.A. 22-3201(e), it can permit amendment to the complaint at any time before the
verdict so long as there is no additional or different crime charged and the substantial
rights of the defendant are not prejudiced. The district court determined that naming and
identifying a specific victim is not an additional or different crime. The court additionally
noted that "[t]he testimony at [the] preliminary hearing largely mirrored that that was
presented yesterday as to the [State's] case in chief" and found that amending the name
"[would] not prejudice the substantial rights of Mr. Redburn, Sr." Accordingly, the court
granted the motion.
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On appeal, Redburn and the State agree that the amendment did not result in
additional or different crimes being charged but disagree whether the amendment
prejudiced Redburn's substantial rights. In particular, Redburn argues that his rights were
prejudiced because the evidence presented at the preliminary hearing and trial "would
have naturally led Mr. Redburn and defense counsel to believe that the victim of the
alleged aggravated assault was E.R." and the amendment "completely thwarted" his
efforts to prepare a defense. The State counters that Redburn's substantial rights were not
prejudiced. According to the State, because Redburn's defense from the outset of trial was
that he brought the knife to the confrontation by pure accident, "from the defense['s]
perspective it wouldn't have matter[ed] who the specific named victim was."

Kansas courts have long considered whether the amendment to the charging
document could have unfairly surprised the defendant in evaluating whether the
amendment prejudiced the defendant's substantial rights. See, e.g., Holman, 295 Kan. at
146; State v. Barncord, 240 Kan. 35, 38, 726 P.2d 1322 (1986); State v. Calderon-
Aparicio, 44 Kan. App. 2d 830, 849, 242 P.3d 1197 (2010) (noting defendant conceded
he was not surprised by amendment), rev. denied 291 Kan. 913 (2011). Kansas courts
have frequently looked at pretrial statements and testimony at preliminary hearings in
considering whether the defendant could have been surprised. See Holman, 295 Kan. at
146; Bischoff, 281 Kan. at 195; Barncord, 240 Kan. at 38.

In finding the amendment was not prejudicial, the district court noted that the
testimony at the preliminary hearing largely mirrored evidence and testimony presented
at trial. During the preliminary hearing, both Jessica and Derek testified that Redburn
pulled out a knife within 18 to 24 inches of Jessica and her son and pointed it at her while
saying he was there to kill E.R. At the close of the preliminary hearing, the State argued
that the evidence showed that Redburn "knowingly placed all three of the individuals that
would be E.R., Jessica and Der[ek] in reasonable apprehension of immediate bodily
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harm." It is difficult to imagine how Redburn could have been unfairly surprised when
the State sought to name Jessica as the victim at trial.

Kansas courts also consider whether the amendment impacted the defendant's
ability to prepare and present a defense. This court has found an amendment to a
complaint or information does not interfere with the defendant's ability to defend against
the charge when the defendant can keep the same defense under the amendment. See
Calderon-Aparicio, 44 Kan. App. 2d at 849 (noting defendant's failure to detail how his
defense would have changed in light of amendments 3 days before trial); State v.
Ibrahim, No. 106,953, 2013 WL 195516, at *10 (Kan. App. 2013) (unpublished opinion)
(finding no prejudice when defendant failed to show his defense would have changed);
but see State v. Spangler, 38 Kan. App. 2d 817, 826-29, 173 P.3d 656 (2007)
(amendment substantially prejudiced defendant's denial defense applied to either
alternative theories of underlying felony charges because amendment expanded time
period and changed specific overt acts of the alleged crimes).

In this case, after the district court allowed the amendment, Redburn testified in
his own defense and generally denied all the allegations, contending that he had the knife
with him by accident, consistent with the defense counsel's opening statement. In
particular, Redburn denied ever threatening Jessica, Derek, or E.R. and stated that the
only time the knife was displayed was when he was attempting to toss it away after he
realized he had inadvertently placed it in his back pocket before he drove over to E.R.'s
house. Although Redburn contends his defense was "completely thwarted" by the
amendment naming Jessica as the victim, his defense was not victim-specific—it was a
general denial and he has not explained how his defense would have changed.

Because a reasonable person could find that Redburn's substantial rights were not
prejudiced by the amendment, Redburn has failed to establish that the district court
abused its discretion in allowing the amendment.
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Finally, Redburn contends that the journal entry of judgment's underlying sentence
is inconsistent with the sentence imposed at the hearing and must be corrected by the
district court. The State concedes this error.

At sentencing, the district court sentenced Redburn to a 12-month sentence on the
aggravated assault conviction and a 6-month sentence on the criminal threat conviction to
run consecutively, resulting in a total underlying sentence of 18 months. The court then
suspended the sentences and imposed a 24-month probation term for the aggravated
assault conviction to run concurrent with a 12-month probation term for the criminal
threat conviction. But the journal entry of judgment incorrectly lists Redburn's underlying
prison term as 24 months.

A criminal sentence is effective when pronounced from the bench at the
sentencing hearing; it does not derive its effectiveness from the journal entry. Therefore,
a journal entry that imposes a sentence that varies from sentence pronounced from the
bench is erroneous and must be corrected to reflect the actual sentence imposed. State v.
Mason, 294 Kan. 675, 677, 279 P.3d 707 (2012) (quoting Abasolo v. State, 284 Kan. 299,
Syl. ¶ 3, 160 P.3d 471 [2007]). The journal entry of sentencing can be corrected by a
nunc pro tunc order. See K.S.A. 22-3504(2); Mason, 294 Kan. at 677.

Therefore, we affirm Redburn's convictions but remand with directions to file a
nunc pro tunc journal entry that accurately reflects the 18-month sentence actually
imposed on him.

Affirmed and remanded with directions.

* * *

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MALONE, C.J., concurring: I disagree that the prosecutor properly elected which
act supported the charge of criminal threat, but because the error was harmless, I agree
that Everette R. Redburn, Sr.'s conviction on this count should be affirmed. In State v.
Colston, 290 Kan. 952. Syl. ¶ 5, 235 P.3d 1234 (2010), the Kansas Supreme Court stated:

"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."

If this statement from Colston is still the law in Kansas, then the prosecutor in this
case did not properly elect which of two separate acts supported the criminal threat
charge. The jury heard evidence that Redburn threatened to kill E.R. when he first arrived
at E.R.'s house. The jury also heard evidence that while the police were arriving at the
scene, Redburn threatened that once he got out of jail, he would get a gun and come back
and kill everyone. During closing argument, the prosecutor focused on the second act to
support the criminal threat charge. The prosecutor also mentioned the first act during the
closing argument, but he did not refer to the first act to support any particular charge. The
prosecutor never informed the jury that it could not consider the first act to support the
criminal threat charge or that the jury must agree on the same underlying act.

In State v. Moyer, 302 Kan. 892, 360 P.3d 384 (2015), the Kansas Supreme Court
recently addressed the propriety of an election by the State in a multiple acts case. The
Moyer court found that the prosecutor in that case involving multiple sexual acts had
made the functional equivalent of an election by the State because the prosecutor focused
the jurors' attention during closing argument on specific sexual acts to support each
charge. 302 Kan. at 911-12. However, the prosecutor in Moyer never informed the jury
that it could not consider evidence of other acts supporting the same charge or that it must
agree on the same underlying criminal act. In discussing whether the State had made a
17
proper election, the Moyer court cited the Colston decision for the proposition that in
order to make a proper election in a multiple acts case, the prosecutor must tell the jury it
cannot consider evidence of other acts supporting the same charge or that it must agree
on the same underlying criminal act. Moyer, 302 Kan. at 911-12. Nevertheless, the Moyer
court breezed by the holding in Colston and found that the prosecutor's election in that
case was sufficient, at least as to most of the charges, because the court could "discern no
room for jury confusion as to the particular sexual act for which the State was
prosecuting Moyer." 302 Kan. at 912.

The ruling in Moyer is inconsistent with the holding in Colston. The Moyer court
did not overrule the decision in Colston, it simply ignored it, creating uncertainty in the
law in Kansas as to what constitutes a proper election by the State in a multiple acts case.

Here, the district court instructed the jury that in order to establish the charge of
criminal threat, the State must prove that Redburn "threatened to commit violence and
communicated the threat with the intent to place another in fear." At trial, the jury heard
evidence that Redburn threatened to kill E.R. when he first arrived at E.R.'s house. The
jury also heard evidence that Redburn threatened to come back and kill everyone after he
got out of jail. Although the prosecutor focused on the second act during the closing
argument, the prosecutor never told the jury that it could not consider the first act to
convict Redburn of criminal threat. Moreover, the prosecutor mentioned both threats
during the closing argument. Under these circumstances, I would find that the prosecutor
failed to properly elect which act supported the criminal threat charge. Thus, the State
committed a multiple acts error as to the charge of criminal threat.

Nevertheless, I agree with the majority that any error was harmless. Redburn
failed to request a multiple acts jury instruction at trial, so we analyze the issue for clear
error. See K.S.A. 2015 Supp. 22-3414(3). Here, Redburn presented a unified defense
because he completely denied threatening anyone. At trial, E.R. and other witnesses all
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testified consistently about the events, and their testimony echoed what they said at the
preliminary hearing and what they told police on the scene. I am not firmly convinced
that the jury would have reached a different verdict had the instruction error not occurred.
See State v. Sisson, 302 Kan. 123, 129, 351 P.3d 1235 (2015). Moreover, I would find the
error harmless even if we applied the harmless error standard set out in State v. Ward,
292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).