The court held that review was not proper under a clearly erroneous standard because of the Sixth Amendment and, under such circumstances, the trial court's failure to give a multiple acts instruction was held to constitute structural error, relying on Sullivan v. Louisiana, 508 U.S. 275, 281-82, 124 L.Ed.2d 182, 113 S.Ct. 2078 (1993). 26 Kan. App. 2d at 331, see Crutcher v. State, 27 Kan. App. 2d 674, Syl. ¶ 3, 9 P.3d 565 (1999). However, in State v. Hill, 28 Kan. App. 2d 28, 11 P.3d 506 (2000), rev. granted February 7, 2001, a different Court of Appeals panel applied a harmless error standard of review after noting the Kansas Supreme Court had not yet pronounced a decision on the standard of review.

For example, in three cases the factual circumstances of the crime do not involve a single, continuous incident over a short period of time. See State v. Wellborn, 27 Kan.App.2d 393, 394, 4 P.3d 1178, rev. denied 269 Kan. 940 (2000) (the crimes were alleged to have occurred between May and July 1995; January and June 1996; and April 1997); Crutcher v. State, 27 Kan.App.2d 674, 675-76, 8 P.3d 1, rev. denied 268 Kan. 845 (1999) (the crimes were alleged to have occurred between January 1, 1992, and November 1, 1992); State v. Barber, 26 Kan.App.2d 330, 331, 988 P.2d 250 (1999) (the defendant possessed a gun during a disturbance, left the area, threw the gun away, got another gun, and later returned).         Furthermore, in State v. Kinmon, 26 Kan.App.2d 677, 678-79, 995 P.2d 876 (1999), the defendant was convicted of possession of cocaine and possession of drug paraphernalia.

On August 13, 1999, the Kansas Court of Appeals reversed Crutcher's conviction because the district court had not given a required unanimity instruction. See Crutcher v. State, 27 Kan. App. 2d 674, 676, 8 P.3d 1, 2 (1999). The Kansas Court of Appeals remanded the case for a new trial.

First, he argues that Irigonegaray's participation in the criminal proceedings constituted structural error and such errors may be raised for the first time in a K.S.A. 60-1507 motion. He cites to Crutcher v. State, 27 Kan.App.2d 674, 8 P.3d 1, rev. denied 268 Kan. 885 (1999), which in an appeal of a 60-1507 denial found that a failure to give a unanimity instruction was structural error, requiring reversal. Pabst does not note that the Crutcher structural error ruling was subsequently abrogated.

Hill rejected the structural error approach, which according to several Court of Appeals decisions required reversal once it was determined that there were multiple acts and the trial court had failed to give a unanimity instruction whether or not requested. See Crutcher v. State, 27 Kan. App. 2d 674, 675-76, 8 P.3d 1, rev. denied 268 Kan. 885 (1999); State v Wellborn, 27 Kan. App. 2d 393, 394, 4 P.3d 1178, rev. denied 269 Kan. 940 (2000); State v. Kinmon, 26 Kan. App. 2d 677, 678-79, 995 P.2d 876 (1999); State v. Barber, 26 Kan. App. 2d 330, 331, 988 P.2d 250 (1999). Instead of the structural error approach, Hill provides for a "two-step harmless error analysis to . . . [the] contention that a unanimity instruction should have been given."

Rather, the State "at some point" must elect the incidents for which adequate proof has been presented or the jury must be given a unanimity instruction. Crutcher v. State, 27 Kan.App.2d 674, 675, 8 P.3d 1 (1999).         INDEPENDENT PSYCHOLOGICAL EXAMINATION OF VICTIM

26 Kan.App.2d at 678-79, 995 P.2d 876. See State v. Wellborn, 27 Kan.App.2d 393, 4 P.3d 1178, rev. denied 269 Kan. 940 (2000) (reversing convictions of rape and aggravated indecent liberties with a child and remanding for a new trial based on trial court's failure to instruct the jury that it must unanimously agree as to the specific act supporting the conviction for each count); Crutcher v. State, 27 Kan.App.2d 674, 8 P.3d 1, rev. denied 268 Kan. 845 (1999) (holding trial court's failure to give unanimity instruction violated defendant's right to unanimous verdict); State v. Barber, 26 Kan.App.2d 330, 988 P.2d 250 (1999) (reversing conviction of criminal possession of a firearm and remanding for a new trial based on trial court's failure to instruct the jury that it must unanimously agree that the same criminal act was proved beyond a reasonable doubt).          Here, it is impossible to know which images constituted the basis of Donham's convictions because he was convicted of 90 counts based on 100 different images admitted into evidence.