The parties agreed that it was error to fail to specify the predicate moving violations and to inform the jury of the elements of those violations. But because defense counsel did not object, the KSC reviewed for clear error. The KSC acknowledged that even a missing element can be harmless error, but held that this instructional error is clear error:
This court cannot know whether the jury found that Richardson committed at least five moving violations, since they were not identified or defined to the jury, and we do not know which specific acts the jury deemed to be moving violations. It may be that the jury included speeding violations that are excluded from the list of moving violations compiled by the Kansas Department of Revenue. It may also be that the jury included acts that are not even statutory infractions, such as being in an intersection when a light is yellow.This is potentially important in some other cases like burglary or conspiracy too.
We will not step into the shoes of the jurors and convict Richardson of five moving violations of our choice--the jury did not make the necessary determination of guilty beyond a reasonable doubt on all the elements of the crime charged.