Twenty incidents in three locations with eleven opportunites is not unitary conduct

Reid T. Nelson won in State v. King, No. 105,995 (Kan. May 16, 2014), obtaining a new trial in a Leavenworth County rape prosecution.  The KSC detailed the facts presented at trial in some detail as it considered the claim of error in failing to give a unanimity instruction.  The KSC had little trouble finding that the record showed multiple acts:

We agree with King that we are faced with a multiple acts situation in this case. R.B.'s allegation of more than 20 different incidents in three different locations and the State's proof of 11 different opportunities for King to be alone with the children mean we are not dealing with "unitary conduct." Yet King was charged in only four counts, two rape counts, one aggravated criminal sodomy count, and one aggravated indecent liberties count.

While acknowledging that youthful victims often cannot provide mathematical certainty regarding reported offenses, the KSC also acknowledged the inherently prejudicial nature of allowing evidence of more multiple acts than charges without instruction or election:

In this case, we cannot ignore or minimize the prejudice to defendant King from the court's failure to instruct on unanimity and the State's failure to elect which of the multiple acts underlying each of King's charges was to be relied upon by the jury. We have no confidence in the reliability of the guilty verdicts, and we reverse all of King's convictions and remand the case for further proceedings.

The KSC also reached an issue regarding whether the state could admit evidence pursuant to K.S.A. 60-455 of acquitted conduct.  The KSC recognized that collateral estoppel could apply to make such use of evidence improper:

Should this case be retried, and should the State again seek to introduce evidence of J.B.'s past allegations against King, the district judge will have to analyze whether the prosecution in which King was acquitted had at its heart the same issue or issues to be entrusted to the second jury in this case. If so, collateral estoppel should prevent introduction of the evidence. If not, collateral estoppel will pose no obstacle to introduction of the evidence.