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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 118,382

STATE OF KANSAS,

Appellee,

v.

CHASE L. COBLE,

Appellant.

SYLLABUS BY THE COURT

When: (1) the State charged three identical counts of aggravated arson; (2) the 

jury instructions and verdict form failed to distinguish between those counts; (3) the jury 

expressed its confusion in aligning the instructions and verdict form with the generic 

counts alleged; (4) that confusion was not ameliorated by the court or in the record; (5) 

the jury convicted on one count while acquitting on the others; and (6) the record reflects 

arguable evidence insufficiency questions on some or all of the convictions, a reviewing 

court's inability to reliably associate particular conduct with the count of conviction

frustrates appellate review and adversely implicates the defendant's rights to due process. 

Under the circumstances of this case, reversal of the conviction is required.

Review of the judgment of the Court of Appeals in an unpublished opinion filed July 26, 2019.

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed January 15, 2021. Judgment of the 

Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and the 

case is remanded.

Korey A. Kaul, of Kansas Appellate Defender Office, argued the cause and was on the briefs for 

appellant. 
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Thomas R. Stanton, district attorney, argued the cause, and Keith E. Schroeder, former district 

attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: A jury convicted Chase L. Coble of one count of aggravated arson, but

acquitted him of two others. All charges were alleged to have occurred at different times, 

but arose after firefighters responded to reports of fire and smoke coming from Coble's

12th-floor apartment, where he had conducted more than 50 self-described chemistry 

experiments. He said he was unaware of any risks associated with these activities.

The problem on appeal is that nothing in the record identifies which aggravated 

arson count to attribute to the jury's split decision—something the jury pointed out during 

its deliberations to no avail. Coble contends the anomalies prevent appropriate appellate 

review of the State's evidence proving the crime of conviction's critical elements, 

especially the intent element of whether he "knowingly" damaged the apartment building

through his actions associated with the jury's verdict. See K.S.A. 2019 Supp. 21-5812

(itemizing elements of aggravated arson). We agree.

These unique, but avoidable, circumstances make it impossible to determine the 

jury's verdict as to which crime it found Coble guilty of beyond a reasonable doubt. Our 

confidence in the propriety of Coble's conviction for this serious criminal charge is 

undermined by concerns for his due process rights. We reverse the conviction and 

remand the case to the district court for further proceedings. We do so recognizing double 

jeopardy issues may arise on remand if the prosecution continues. See State v. Dale, 312 

Kan. 174, 178, 474 P.3d 291 (2020). That must be left initially to the district court and 

the parties on remand.
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FACTUAL AND PROCEDURAL BACKGROUND

In the early morning on June 21, 2016, the Hutchinson Fire Department was 

dispatched to Coble's apartment, which is in a building with about 75 residents. When 

firefighters arrived, they found a small fire and light smoke. The sprinkler system had 

engaged, causing water to leak into the apartment below. Officer Ernie Underwood 

observed about an inch or two of water on the floor of Coble's apartment and scorch 

marks on the walls and ceiling. He saw lab equipment, such as beakers and test tubes, as 

well as drain cleaner, sulfur, salt peter, and household chemicals.

Multiple investigators gave similar testimony about the condition of Coble's 

apartment following the fire. Anthony Celeste, a state fire marshal investigator, gave a 

representative account accompanied by photographs he took at the scene. He pointed out 

wet kitty litter and glass fragments on the top of a chest freezer. He concluded the fire

originated on top of the freezer. He also identified evidence of fire in the kitchen, 

consisting of "soot collection" and "charring" on the ceiling "close to above the sink." 

And he took the jury through photographs of a closet, noting charring on the door from 

past fires with soot and charring on the wall and ceiling. Celeste concluded the fire on the 

freezer top in the front room was "incendiary," which he defined as "a fire that's 

intentionally set in a place where fire should not be . . . ." He told the jury he could 

"clearly document" three incendiary fires—one on the freezer, one in the closet, and one 

in the kitchen.

When police encountered Coble the morning firefighters arrived, Coble had 

scarring from mid-chest level to his stomach, which he said were acid burns from "a 

flashover" during an experiment about a week and a half before. Coble explained to 

investigators on the scene and during a later interview with Federal Bureau of Alcohol, 
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Tobacco, and Firearms Agent Neil Tierney, that the trouble prompting the firefighters' 

response occurred while he was trying to produce a fire with a specific amount of heat.

Coble told Tierney he combined methyl ethyl ketone, which is a liquid solvent, 

with camp gas in a glass bowl on top of the freezer. He ignited this mixture by dropping 

burning wood into the bowl. He said this normally results in a small flash with a 

controlled flame, but this time he mistakenly let fumes from the chemicals build up 

before igniting the mixture. He thought he might have been distracted by his phone when 

this larger-than-normal flash happened. Water from the sprinkler system exacerbated the 

flare up and cracked the glass bowl.

Tierney also questioned Coble about the closet and kitchen damage. Coble said the 

closet damage was caused by toluene, which burns "dirty." Ashes found on the kitchen 

stove were from burning toluene in a flask on the stove. Coble said his stomach burns 

came from mixing muriatic or sulfuric acid with another material about a week and a half 

earlier. He said those events were the "worst." He also said he had performed an 

experiment on the "infusion rate of chlorine gas" that caused him some minor respiratory 

problems. Coble estimated he had performed at least 50 exothermic reactions—chemical 

events that generate heat—in his apartment in the last year. He guessed he had produced 

open fires 10 to 20 times.

Coble volunteered that much of what he did was for demonstrations to kids. Later, 

when asked why he was performing his experiments, Coble said he was trying to develop 

a metallic plastic that could be used in computer chips. He agreed he acted recklessly and 

said his arrogance caused him to believe he could control his experiments. He told 

Tierney he was "deficient in his P.P.E." When questioned about ingredients for

explosives, Coble said he did not touch anything he did not believe he could control 

within a reasonable time.
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At trial, Tierney said he believed Coble knew about chemistry and explosives. But 

when defense counsel asked if he believed Coble was aware of the hazards from the 

chemicals being used, Tierney hedged. He answered that "normally [he] would say, yes," 

noting Coble continued performing experiments after "get[ting] burned and creat[ing] 

chlorine gas that could have killed him . . . ." Tierney admitted Coble said "yeah, I 

shouldn't have done that." But Tierney then added, "It's almost as if he were not 

knowledgeable because he almost killed himself."

Coble testified at trial. He said he learned about chemicals mostly from school and 

college, with some knowledge self-taught. He denied trying to set a fire and did not think 

his experiments would cause a substantial risk of bodily harm. He thought he had control 

over the situations because of the kitty litter, and that if anyone would be harmed, it 

would have been him. He said he was unaware of any risks and did not know his

apartment's sprinklers were heat-based. On cross-examination, Coble agreed he was 

"doing controlled flames in [his] apartment" and that he was trying to start a fire "[a]s 

much as anyone would light a candle." He denied trying to set fire to the building. Coble 

acknowledged what he was doing was "very, very reckless," but he did not believe it was

dangerous. He conceded the experiments should have been done in a lab or away from 

people, or under someone else's supervision.

The charging documents and jury instructions

The State ultimately filed three complaints in this case: the original one, an 

amended complaint filed the morning of trial, and a second amended complaint filed midtrial. In each, the State set out three indistinguishable aggravated arson counts. The first

amended complaint exemplifies how the State charged the three offenses. Each read:
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"That on or about the 21st day of June, 2016, in Reno County, Kansas, CHASE L 

COBLE, then and there being present did unlawfully, feloniously, and knowingly, by 

means of fire or explosive, damage any building or property, to-wit: Apartment 

Building located at 17 East 2nd, Hutchinson, Kansas, which is a dwelling, in which 

another person, to-wit: Ray Siebert has any interest, without the consent of such other 

person, committed upon a building or property in which there is a human being, and 

resulting in a substantial risk of bodily harm."

In other words, each count was alleged to have occurred "on or about the 21st day 

of June, 2016," but with no other identifying characteristics differentiating one alleged 

incident from the others. 

In submitting these three aggravated arson charges to the jury, the district court 

repeated the State's charging tactic by giving identical jury instructions for each. For 

example, jury instruction number 6 provided,

"In Count 1, Chase Coble is charged with aggravated arson. Chase Coble pleads 

not guilty.

"To establish this charge, each of the following claims must be proved:

"1. Chase Coble committed arson by knowingly, by means of fire or an 

explosive, damaging a building in which Ray Siebert had an interest, without the consent 

of Ray Siebert.

"2. At the time there was a human being in the building.

"3. The fire or explosion resulted in a substantial risk of bodily harm.

"4. This act occurred on or about the 21st day of June, 2016, in Reno County, 

Kansas." (Emphasis added.)
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The only difference between instruction 6 and the instructions for the two other 

counts was the count number referenced. And without further detail, the court instructed 

the jury:

"Each crime charged against Chase Coble is a separate and distinct offense. You 

must decide each charge separately on the evidence and the law applicable to it, 

uninfluenced by your decision as to any other charge. Chase Coble may be convicted or 

acquitted on any or all of the offenses charged. Your finding as to each crime charged 

must be stated in a verdict form signed by the Presiding Juror."

As to the mental state required for an aggravated arson conviction, the court 

instructed the jury that "The State must prove that Chase Coble committed aggravated 

arson knowingly. A defendant acts knowingly when the defendant is aware that his 

conduct was reasonably certain to cause the result complained about by the State."

(Emphasis added.) Instruction 13 informed the jury, "Your agreement upon a verdict 

must be unanimous." And in keeping with the nondescript style used in the complaint and 

the jury instructions, the jury's verdict form was identical for each aggravated arson 

count. For example, Count One stated: "Count One. We, the jury, find Chase Coble as to 

aggravated arson: Guilty____ Not Guilty ___." The others were the same.

Closing arguments

The prosecutor noted in closing there were three separate incidents that caused

damage in three areas of the apartment—the closet, another in the kitchen, and "the one 

near the entryway that caused the smoke alarms to go off and sprinkler systems and that's 

what caused us all to be here today." The prosecutor argued Coble "knew exactly what he 

was doing." The only thing the prosecutor said about which count was linked to which 

factual scenario was:
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"The law says that in order to find the defendant guilty you have to be convinced 

beyond a reasonable doubt of the claims made by the [S]tate and those claims are in the 

elements. We know that there were three separate exothermic reactions whether they're 

fires or explosions or whatever that caused damage to three different areas of the 

apartment; one in a closet, one in the kitchen, and then the one near the entryway that 

caused the smoke alarms to go off and sprinkler systems and that's what caused us all to 

be here today.

"We know the last one occurred on June the 21st of 2016. The others occurred 

sometime before and I will point out that if you look at the elements it says that the [S]tate 

has to prove that the crimes, the three crimes charged occurred on or about June the 21st 

of 2016. Doesn't have to have occurred on June the 21st of 2016, it could have occurred 

about, around June the 21st of 2016. So long as it's within the statute of limitations. We 

don't know a precise date when those other events occurred." (Emphases added.)

Defense counsel's closing focused mainly on the June 21 incident. As to the 

remaining counts, defense counsel contended, "Counts two and three were never 

specified nor were they proven by the [S]tate. There was vague mention of other minor 

damage in the apartment, but never addressed with any specificity. Therefore you must 

return a verdict of not guilty on those two counts." (Emphasis added.) And as to the 

crimes' mental state element, she argued,

"Did Chase knowingly set a fire or cause an explosion which damaged the apartment? 

No, he did not.

"He was conducting an experiment to meld plastic and metal to create a super 

little computer component that he could use and market to create something that would 

benefit all of society . . . ."
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The jury's question 

During deliberations, the jury asked, "Do the three counts apply to specific 

locations or events and if they do, which ones belong to which counts?" (Emphasis 

added.) The court conferred with the attorneys and Coble. The following exchange 

occurred:

"[The court]: My suggestion, counsel, is you are referred to the instructions the 

court gave you.

"[Defense counsel]: That's, that's my opinion.

"[The court]: Okay. Mr. Schroeder?

"[Prosecutor]: Judge, in my proposed instructions I included the multiple acts 

instruction that's pointing you to PIK 68.100. And the multiple acts instruction advises 

the jury that they have to unanimously agree upon the act in each count. And they, the 

comments refer to a situation like this.

"The court didn't do that. I don't object to the instruction you're giving them, but 

I, the [S]tate suggests that you supplement the answer with 68.100.

"[The court]: And just to reiterate, [defense counsel], you do not join in that 

request?

"[Defense counsel]: That is correct, Your Honor. I don't think it's appropriate to 

add an instruction at this point."

The instruction the prosecutor proposed was initially requested for some criminal 

use of explosives charges that were dismissed before the case was submitted to the jury. 

It would have provided, "The State claims multiple acts which each could separately 
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constitute the crime of criminal use of explosives. In order for the defendant to be found 

guilty of criminal use of explosives, you must unanimously agree upon the same 

underlying act."

The district court decided to respond to the jury's question by stating: "[Y]ou are 

referred to the instructions the court gave you." 

When the jury returned its verdict, it had checked "Guilty" for Count One. It 

checked "Not guilty" for the other two. The district court sentenced Coble to 66 months' 

imprisonment. Coble appealed.

The Court of Appeals decision

Coble raised two issues on appeal. First, he argued the use of nondescript jury 

instructions for each aggravated arson count made the jury's outcome hopelessly

ambiguous. He contended this required reversal because it prevented meaningful 

appellate review of the evidence's sufficiency for the convicted crime, as no one knows

what conduct comprised the count the jury convicted him of, or what conduct comprised 

the acquittals. Second, he contended in the alternative there was insufficient evidence to 

support conviction for any of the three incidents identified by the State because the 

prosecution failed to prove Coble knowingly caused damage to the apartment building. 

He also claimed it failed to show the apartment building was occupied when the closet 

and kitchen incidents occurred on the unknown dates.

A Court of Appeals panel affirmed. State v. Coble, No. 118,382, 2019 WL 

3367365, at *3-4 (Kan. App. 2019) (unpublished opinion). It reached three holdings. 

First, it held Coble "invited the ambiguity" he complained about in the jury instructions

when he argued "against the State's clarifying instruction." 2019 WL 3367365, at *3. 
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Second, the panel held there was no jury confusion about which count went with which 

factual scenario because the parties' closing arguments made that clear. In the panel's 

view, Count One—the count resulting in the guilty verdict—referred to the June 21 fire. 

Finally, it held sufficient evidence demonstrating the June 21 incident supported Coble's 

conviction on Count One. 2019 WL 3367365, at *4.

Coble petitioned this court for review, which we granted. Jurisdiction is proper. 

See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); 

K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions 

upon petition for review).

INVITED ERROR

We consider first the panel's conclusion that Coble cannot challenge the verdict's

ambiguity because he invited it when his counsel objected to the State's suggestion to 

give a unanimity instruction in response to the jury's question. Coble, 2019 WL 3367365, 

at *3. We disagree. The State's suggestion and Coble's objection to that suggestion were 

meaningless to the problem at hand because the State's proposed solution would not have 

corrected it.

For clarity, recall that the State's notion was to give an instruction along these 

lines: The State claims multiple acts which each separately constitute the crime of 

aggravated arson. In order for the defendant to be found guilty of aggravated arson, you 

must unanimously agree upon the same underlying act.

Had it been given, this would have simply told the jury to agree unanimously

among themselves on the same underlying facts if they found the defendant guilty on any 
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count. But it would not have helped a reviewing court differentiate between the jury's 

guilty finding (Count One) and its acquittals (Counts Two and Three).

A unanimity instruction is a tool used in multiple acts cases when incidents that 

are legally and factually separate can independently satisfy the elements of a charged 

offense. State v. King, 299 Kan. 372, 379, 323 P.3d 1277 (2014). The unanimity 

instruction is designed to ensure the jury agreed on a single set of those facts before 

convicting when a single offense can be committed in more than one way. State v. 

Cottrell, 310 Kan. 150, 154, 445 P.3d 1132 (2019); see also K.S.A. 22-3421 (requiring 

jury unanimity). But the problem in Coble's case has a more confounding layer beyond 

evidence of multiple acts because each act could satisfy the elements of any one of the 

multiple charges.

The State alleged three separate counts, intending that each be linked to a different 

incident. The prosecutor explained in his closing argument, one count was associated 

with the closet, another with the kitchen, and "the one near the entryway that caused the 

smoke alarms to go off and sprinkler systems and that's what caused us all to be here 

today." And all we know from the record is that the jury convicted on Count One, and 

acquitted on the other two. The question Coble asks remains—which incident did the jury 

believe comprised the count of conviction? A unanimity instruction designed to ensure 

the jury agreed on a single set of those facts when a single offense is charged would not 

help a reviewing court associate a particular, alleged factual scenario with any of the 

three generic counts presented to that jury.

We appreciate there is no bright-line rule for when the invited error rule applies. 

But we have explained that "when a defendant actively pursues what is later argued to be 

an error, then the doctrine most certainly applies." State v. Sasser, 305 Kan. 1231, 1236, 

391 P.3d 698 (2017); see also State v. Pattillo, 311 Kan. 995, 1014, 469 P.3d 1250 
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(2020). This necessarily means the defendant's advocacy has to be linked to the adverse 

impact of the error claimed on appeal. For example, in State v. Angelo, 287 Kan. 262, 

279-80, 197 P.3d 337 (2008), the invited error doctrine barred review of a defendant's 

assertion of error for not giving a lesser included offense instruction when the defendant 

refused the court's offer to give that instruction. But here, the State's proposed instruction 

that Coble objected to could not have solved the problem because no necessary link exists 

between his advocacy and the alleged error before us.

The panel's holding that Coble invited the error he complains of is plainly wrong

given what was proposed as the solution. The error Coble advances on appeal would not 

have been averted by the State's suggestion.

MEANINGFUL AND EFFECTIVE APPELLATE REVIEW

Despite its invited error ruling, which would have normally ended Coble's appeal

at the Court of Appeals, the panel went on to pursue the analytical challenge presented. It 

tried to figure out for itself which of the three generic counts applied to the jury's guilty 

verdict. This, of course, underscores the importance of being able to associate the alleged

factual scenario with the count of conviction in these circumstances. And had the panel 

succeeded in this task, the sufficiency of the evidence considerations would have had 

sharper focus for appellate review. But the panel's rationale does not support its 

conclusion, so the jury's outcome remains an enigma.

The panel concluded the jury convicted Coble on the June 21 incident, which 

makes it the elusive Count 1. Coble, 2019 WL 3367365, at *3 ("[T]he record shows that 

both parties' closing arguments to the jurors informed them that the event on June 21, 

2016, was reflected in Count 1."). To get there, it first noted that after the State rested, 

Coble's attorney moved for a judgment of acquittal on Counts Two and Three, arguing 
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there was no evidence to verify when they occurred. 2019 WL 3367365, at *3. And from 

this it concluded the defense at least understood Count One was the June 21 incident, so

there was no confusion among the parties about which count was aligned with which set 

of facts. Next, the panel found the parties' arguments to the jury "informed them that the 

event on June 21, 2016, was reflected in Count 1." (Emphasis added.) 2019 WL 3367365, 

at *3. The panel explained its thinking as follows:

"The State argued there were three events: one was in a closet; one was in the kitchen; 

and 'one near the entryway that caused the smoke alarms to go off and sprinkler systems 

and that's what caused us all to be here today. We know the last one occurred on June the 

21st of 2016. The others occurred sometime before . . . .'

"Coble's attorney argued at length to the jury about the elements of aggravated 

arson and whether the State met its burden to prove those elements for the event on June 

21, 2016. She then separated her argument from the events of June 21, 2016, and 

succinctly argued, 'Counts Two and Three were never specified nor were they proven by 

the [S]tate. There was vague mention of other minor damage in the apartment, but never 

addressed with any specificity. Therefore you must return a verdict of not guilty on those 

two counts.' The jury did so.

"Given this record we see no ambiguity in the jury's verdict. The arguments of 

both parties steered the jury into considering Count 1 applied to the fire of June 21. That 

means the real question remains. Did the State prove Coble guilty beyond a reasonable 

doubt on Count 1? We will proceed to the sufficiency of the evidence." (Emphasis 

added.) 2019 WL 3367365, at *3-4.

Through this exercise, the panel appropriately focused its inquiry on trying to 

determine what the jury understood in being able to associate the charges with the 

instructions and verdict form. But we fail to see any clarity. In its closing, the State 

sequenced the events chronologically and described the June 21 incident as the last one, 
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while the defense sequenced the charges with Count One as the June 21 occurrence. Was 

the jury to believe the State or the defense? And we fail to see any relevance in terms of

what the jury understood from the court conference with counsel which happened outside

the jury's presence.

In State v. Brown, 311 Kan. 527, 464 P.3d 938 (2020), the court wrestled with an

internally inconsistent verdict form. The Brown court held, "An ambiguous verdict can be 

reasonably interpreted in light of the charging document, the jury instructions, and the 

record as a whole to determine and give effect to the jury's intent." (Emphasis added.) 311 

Kan. 527, Syl. ¶ 1. And in applying that principle to the facts in Brown, the court 

concluded that even though there was some doubt over the meaning of the jury's verdict, 

aspects of the record proved the jury's intent with the requisite certainty. The Brown court 

held that "we are convinced (as was the district court) beyond a reasonable doubt that the 

jury intended to convict Brown of attempted voluntary manslaughter." (Emphasis added.)

311 Kan. at 539. But in Coble's case the record does not permit any degree of certainty, 

let alone any that rises to the demanding standard of beyond a reasonable doubt.

As noted, the panel's reference to counsels' statements during arguments on a

motion for judgment of acquittal was misplaced because it was outside the jury's 

presence. That exchange cannot illuminate what the jury may have been thinking in 

convicting on one count and acquitting on two others. And as to closing arguments, the 

State did not differentiate the facts associated with the separately listed charges, and its 

sequencing suggests a chronological listing of the counts culminating with the June 21 

incident, rather than the reverse as the panel concluded. 

Based on the arguably conflicting remarks from counsel as to how the evidence 

corresponded to the charges, the question remains: Was the June 21 incident in the jury's 

mind the first count on the jury verdict form's sequencing or "the last one" as the 
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prosecutor said? The prosecutor's comments do nothing to clarify that. And this

uncertainty is reinforced by the jury's question wondering, "Do the three counts apply to 

specific locations or events and if they do, which ones belong to which counts?" 

(Emphasis added.) The district court's failure to answer that question gave the jury no 

help because all it did was refer back to the same generic instructions the jurors had 

already found puzzling. And while the referral-back approach may be appropriate under 

some circumstances, it did not help solve this obvious quandary. 

We hold the panel's conclusion about the jury's understanding of the sequencing of 

the counts in the instructions and verdict form is unsupported on this record. We cannot 

discern the jury's intent, as we have in other circumstances. See Brown, 311 Kan. 527, 

Syl. ¶ 1. Given this, what alternatives are left?

In a criminal case, when a defendant challenges the evidence's sufficiency to 

support a conviction, an appellate court examines the evidence in the light most favorable 

to the State to determine whether a rational fact-finder could have found the defendant 

guilty beyond a reasonable doubt. Pattillo, 311 Kan. at 1003. We do that because our task 

is "to determine whether the record evidence could reasonably support a finding of guilt 

beyond a reasonable doubt," not whether we "believe[ ] that the evidence . . . established 

guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 

2781, 61 L. Ed. 2d 560 (1979). This standard of review 

"gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the 

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to 

ultimate facts. Once a defendant has been found guilty of the crime charged, the 

factfinder's role as weigher of the evidence is preserved through a legal conclusion that 

upon judicial review all of the evidence is to be considered in the light most favorable to 

the prosecution. The criterion thus impinges upon 'jury' discretion only to the extent 
17

necessary to guarantee the fundamental protection of due process of law." 443 U.S. at 

319.

But this is a function we cannot perform on this record. And we are sufficiently 

troubled by the uncertain circumstances of Coble's conviction and acquittals that we must 

reverse the conviction and remand the case for additional proceedings. The underlying 

premise of Coble's argument is that the manner in which the district court explained the 

charges to the jury was fatally infirm because the court cannot say with any degree of 

certainty which act the jury found constituted aggravated arson. And on these facts, we 

agree. Admittedly, the exact nature of the error defies ready classification, but we cannot 

tell what conduct constituted the crime of conviction among the choices facing the jury 

and given their acquittal on two counts. This deserves a fuller explanation.

To begin with, the charging documents and jury instructions touch upon the due 

process requirement that a defendant have notice of the charges against him. "No 

principle of procedural due process is more clearly established than that notice of the 

specific charge, and a chance to be heard in a trial of the issues raised by that charge, if 

desired, are among the constitutional rights of every accused . . . in all courts, state or 

federal." Cole v. Arkansas, 333 U.S. 196, 201, 68 S. Ct. 514, 92 L. Ed. 644 (1948). The 

State put on evidence of multiple incidents, but the lack of specificity in its charging 

document or the court's jury instructions about which incident belonged to which count 

hinders Coble's ability on appeal to argue against criminal liability for each of the 

incidents that were alleged on a separate basis. And the parties' closing arguments 

reflecting that defense counsel and the State were not on the same page about which 

count covered which event highlights the difficulty presented for Coble's defense—and 

that difficulty permeated the entire proceedings.
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By failing to distinguish between its three counts, the State effectively presented 

three identical multiple acts charges to the jury, i.e., each incident reflected in the 

evidence could satisfy each of the three charges. And since the charges were 

indistinguishable and no instruction identified the counts, we cannot be sure all the jurors 

focused on the June 21 incident or one of the others given the confusing arguments 

presented by counsel and lack of direction from the court in its instructions and verdict 

form.

This confusion is somewhat analogous to a circumstance when an incomplete trial 

transcript frustrates appellate review. See State v. Holt, 298 Kan. 531, 537-38, 314 P.3d 

870 (2013) ("Adequate and effective appellate review is impossible without a trial 

transcript or an 'adequate substitute.' In the context of a criminal prosecution, due process 

requires a reasonably accurate and complete record of the trial proceeding in order to 

allow meaningful and effective appellate review. [Citations omitted.]"). The deficiency 

offends due process by defeating the defendant's substantive right to appellate review, 

and "the proper remedy is to reverse and remand for a new trial." (Emphasis added.) 298 

Kan. at 538. The trial record here, though complete, still makes it impossible to conclude 

with confidence that sufficient evidence supports the jury's verdict.

The Wyoming Supreme Court, under similar circumstances to Coble's case, 

concluded reversal was the appropriate remedy when the defendant was charged with and 

convicted of three identical counts of a crime, and the evidence established at least three 

separate incidents that could each constitute any one of the counts. Heywood v. State, 170 

P.3d 1227, 1235-36 (Wyo. 2007), abrogated on other grounds by Granzer v. State, 193 

P.3d 266 (Wyo. 2008). The defendant gave different innocent explanations for each 

incident. The jury asked during deliberations, "[W]hat crime it was to deliberate upon 

under each of the three counts." 170 P.3d at 1234. Their question was not answered. On 
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appeal, the defendant challenged the convictions, arguing the refusal to answer the 

question was plain error. The court agreed, explaining: 

"In light of all we have said above, we conclude that the district court committed 

prejudicial error in failing to provide a substantive answer to the jury's question in this 

case, if the paper in the file was, indeed, a jury question. Even without that error, the 

instructions were inadequate. The fundamental problem is that, contrary to law, we are 

left in doubt as to the circumstances under which a crime was found to have been 

committed under any of the three counts. The jury clearly could have been confused as to 

what the charge was under each count, and the judge apparently did not clear up that 

confusion. The reason that the jury could have been confused, of course, is the fact that 

neither the Information, nor the elements instruction, nor the verdict form, was properly 

drafted. Beyond that, not only is the jury supposed to consider the evidence as it applies 

to each count, one by one, which was impossible to do in this case, but the judge is to 

sentence on each count, with the nature of the offense being part of the sentencing 

consideration. That was also impossible for him to do." (Emphases added.) Heywood, 

170 P.3d at 1235.

Similarly, our due process concerns compel us to reverse Coble's conviction and 

remand this case to the district court for additional proceedings. This result arises from 

the specific circumstances presented: (1) the State charged three identical counts of 

aggravated arson; (2) the jury instructions and verdict form failed to distinguish between 

those counts; (3) the jury expressed its confusion about aligning the instructions and 

verdict form with the generic counts alleged; (4) that confusion was not ameliorated by 

the court or in the record; (5) the jury convicted on one count while acquitting on the 

others; and (6) the arguable insufficiency of the evidence to support some or all of the

convictions Coble points out in his appellate briefing.
20

We acknowledge the district court on remand may have double jeopardy issues to 

contend with if the prosecution continues. Dale, 312 Kan. at 178. We leave that to the 

district court and the parties for now.

Reversed and remanded. 

SCOTT SHOWALTER, District Judge, assigned.1

1REPORTER'S NOTE: District Judge Showalter was appointed to hear case No. 

118,382 under the authority vested in the Supreme Court by art. 3, § 6(f) of the Kansas 

Constitution to fill the vacancy on the court by the retirement of Justice Carol A. Beier.