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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 119,741

STATE OF KANSAS,

Appellee,

v.

DOMINIC VARGAS,

Appellant.

SYLLABUS BY THE COURT

1. 

A district court has no authority to hold one of two convictions for alternatively

charged counts in abeyance.

2.

When a jury returns guilty verdicts on two alternatively charged counts, a district 

court may enter only one conviction. 

3.

Where alternatively charged counts result in multiple guilty verdicts for alternative 

ways of committing one crime, the multiple verdicts merge into one conviction. 

Review of the judgment of the Court of Appeals in an unpublished opinion filed October 25, 

2019. Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed July 30, 2021.

Judgment of the Court of Appeals reversing the district court is affirmed in part and reversed in part on 

the issue subject to review. Judgment of the district court is reversed on the issue subject to review, and 

the case is remanded to the district court with directions.
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Kasper Schirer, of Kansas Appellate Defender Office, argued the cause, and was on the brief for 

appellant. 

Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney, 

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

The opinion of the court was delivered by

WILSON, J.: The State seeks review of the portion of the judgment of the Court of 

Appeals in State v. Vargas, No. 119,741, 2019 WL 5485179 (Kan. App. 2019) 

(unpublished opinion), reversing one of Dominic Vargas' two alternatively charged 

convictions for fleeing or attempting to elude a law enforcement officer. The State asserts 

it is appropriate for the court to keep both convictions, so long as one is held "in 

abeyance." The State is wrong. The two guilty verdicts on alternatively charged counts in 

this case can support only one conviction. There is no authority for a second conviction, 

regardless of what it might be labelled. On this point we agree with the panel below. 

However, the panel overstepped by dictating that the second conviction must be reversed. 

Rather, the guilty verdicts on alternative counts charging the same crime merge by 

operation of law to result in a single conviction for fleeing or attempting to elude law 

enforcement. Consequently, we affirm the panel in part and reverse it in part. The district 

court is reversed on the sole issue before us, and we remand the matter to the district 

court with directions to enter an amended journal entry reflecting the merger of the two

guilty verdicts into one conviction, as we will discuss below.

FACTUAL AND PROCEDURAL BACKGROUND

For purposes of our review, the underlying facts of this case are not at issue; a 

more detailed summary of the facts may be found in the Court of Appeals opinion. 

Briefly stated, on March 31, 2016, Sedgwick County Sheriff's Deputy James Maness saw 
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a black Pontiac G6 cut other cars off on Kellogg Avenue. Maness activated his lights and 

siren in an effort to pull the G6 over, but when the G6's driver—later identified by 

Maness as Vargas—defied these signals and "floored it" to escape, Maness pursued him. 

Vargas ultimately evaded Maness after a short pursuit through Wichita, at one point 

exceeding 120 mph in a 50 mph zone. During the chase, Maness saw Vargas commit 

numerous traffic violations, including speeding infractions, running red lights, and failing 

to use turn signals, among others.

Maness subsequently learned that the G6 belonged to Jessica Garcia. Deputies 

dispatched to her residence learned that Vargas was Garcia's boyfriend. Although Garcia 

and the deputies presented somewhat conflicting testimony at trial on this point, the 

deputies were informed, at the very least, that Vargas had access to Garcia's car that day. 

Based on Vargas' driver's license photo and his observations of the G6's driver during the 

pursuit, Maness identified the G6's driver as Vargas.

Following this identification, the State charged Vargas with two alternative counts 

of fleeing or attempting to elude an officer: the first alleging, under "K.S.A. 2015 Supp. 

8-1568(b)(1)(E)[,](c)(2)," that Vargas committed five or more moving violations (Count 

One) and the second alleging, under "K.S.A. 2015 Supp. 8-1568(b)(1)(C)[,](c)(2)," that 

Vargas engaged in reckless driving (Count Two). The State also charged Vargas with

unlawfully operating a motor vehicle based on failure to signal a lane change (Count 

Three).

At the conclusion of trial, the jury returned guilty verdicts on all three counts, and 

the district court convicted Vargas of all three. At sentencing, the State suggested that the 

district court could hold Count Two "in abeyance" and sentence Vargas based on Count 

One as the primary crime of conviction, and—with no objection from Vargas' counsel—

the district court agreed. The district court then sentenced Vargas on Count One and 
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Count Three, giving him a total term of 15 months' incarceration. The journal entry 

ultimately entered by the district court memorialized Vargas' conviction for Count Two 

but noted that the sentence was held in abeyance. 

Vargas appealed. Before the Court of Appeals, Vargas argued—among other 

things—that the district court erred by entering convictions on both alternatively charged 

counts of fleeing or attempting to elude a law enforcement officer. The State, meanwhile, 

conceded that merger of Counts One and Two could be appropriate but argued that the 

district court's decision to hold Count Two in abeyance eliminated the need to consider 

merger. The panel noted this concession but said no more about the question of merger. 

Based largely on State v. Garza, 290 Kan. 1021, 1035-36, 236 P.3d 501 (2010), the panel 

concluded that the district court lacked authority to enter both convictions, and that it had 

no authority to hold one conviction in abeyance. The panel went on to state: 

"Accordingly, we [reverse] Vargas' second conviction for fleeing or attempting to elude a 

law enforcement officer for reckless driving and remand this case with directions to the 

district court to enter an amended journal entry reflecting one conviction for fleeing or 

attempting to elude a law enforcement officer as well as the conviction for failing to 

signal a lane change." Vargas, 2019 WL 5485179, at *4.

The panel rejected Vargas' other claimed errors, including a challenge to the 

verdict form, a challenge to the district court's denial of Vargas' motion for mistrial, and a 

claim of prosecutorial error, along with a claim of cumulative error. 2019 WL 5485179, 

at *4-8. Both parties petitioned this court for review, but we granted only the State's 

cross-petition for review on the issue of the district court's authority to hold in abeyance 

an alternatively charged conviction.

For reasons set out more fully below, we hold that both alternatively charged 

convictions cannot stand. In this case, the alternative jury verdicts for one crime—fleeing 
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or attempting to elude law enforcement—merge to form one conviction for fleeing or 

attempting to elude law enforcement. 

ANALYSIS

The district court lacked authority to enter two convictions on the alternative counts of 

fleeing or attempting to elude law enforcement.

Standard of Review

As the issue before this court requires consideration of whether the district court 

exceeded its statutory authority and whether the district court entered multiplicitous 

convictions, we review the district court's decision de novo. See, e.g., State v. George, 

311 Kan. 693, 696, 466 P.3d 469 (2020) (multiplicity); State v. Eddy, 299 Kan. 29, 32, 

321 P.3d 12 (2014) (statutory interpretation); In re Marriage of Doney & Risley, 41 Kan. 

App. 2d 294, 297, 201 P.3d 770 (2009) (district court exceeding statutory authority).

Discussion

Vargas' at-issue convictions lie under K.S.A. 2015 Supp. 8-1568(b)(1), which 

provides, in relevant part:

"(b) Any driver of a motor vehicle who willfully fails or refuses to bring such 

driver's vehicle to a stop, or who otherwise flees or attempts to elude a pursuing 

police vehicle or police bicycle, when given visual or audible signal to bring the 

vehicle to a stop, and who: (1) Commits any of the following during a police 

pursuit: . . . (C) engages in reckless driving as defined by K.S.A. 8-1566, and 

amendments thereto; . . . or (E) commits five or more moving violations." 
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We have recognized that driving recklessly and committing moving violations 

might occur simultaneously.

"The State can prove that unsafe vehicle operation by either establishing the 

definition of 'reckless' as applicable to the crime of reckless driving or by establishing 

that, during the flight, the defendant committed five or more moving violations. Contrary 

to being mutually exclusive, those proofs would most likely overlap. It is difficult to 

imagine that a juror would not view the act of running multiple stop signs at speeds 

exceeding 100 miles per hour as evidence of reckless driving." (Emphasis added.) State v. 

Castleberry, 301 Kan. 170, 185, 339 P.3d 795 (2014).

The panel here, relying on Garza, 290 Kan. at 1036, reversed Vargas' conviction 

for Count Two because "'a defendant cannot be convicted of both offenses when the 

crimes are charged in the alternative.'" Vargas, 2019 WL 5485179, at *4. The panel also 

noted that Garza cited State v. Blanchette, 35 Kan. App. 2d 686, 704, 134 P.3d 19 (2006), 

and State v. Dixon, 252 Kan. 39, 49, 843 P.2d 182 (1992), for support. Vargas, 2019 WL 

5485179, at *4. 

The State attempts to "save" the second conviction by claiming that the district 

court may hold one alternatively charged conviction "in abeyance." In support, the State 

cites several cases where appellate courts have held (or recognized the holding of) entire 

cases, or portions of those cases, in abeyance for various procedural reasons; the State 

also cites several cases where a district court has purported to stay or hold in abeyance 

some aspect of a case, usually as part of an agreement with the defendant. See, e.g., 

Gannon v. State, 303 Kan. 682, 741, 368 P.3d 1024 (2016) (mandate stayed in order to 

give the Legislature time to craft a solution); State v. Petersen-Beard, 304 Kan. 192, 212, 

377 P.3d 1127 (2016) (Johnson, J., dissenting) (dissent recognized that the appeal in 

another case had been "held in abeyance pending" the Petersen-Beard decision); State v. 

Scott, 286 Kan. 54, 91, 183 P.3d 801 (2008) (recognizing that appeal had been held in 

abeyance pending outcome of Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. 
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Ed. 2d 429 [2006]), overruled on other grounds by State v. Dunn, 304 Kan. 773, 375 P.3d 

332 (2016); State v. Campbell, 273 Kan. 414, 424, 44 P.3d 349 (2002) (recognizing 

district court's authority to sentence a defendant on counts initially suspended under an 

agreement between the defendant and the State); State v. Orr, 262 Kan. 312, 316, 940 

P.2d 42 (1997) (appellate court retained jurisdiction over appeal despite a remand for a 

hearing under State v. Van Cleave, 239 Kan. 117, 119, 716 P.2d 580 [1986]); State v. 

Dalton, 21 Kan. App. 2d 50, 55, 895 P.2d 204 (1995) (diversion agreement placed 

criminal charges "in abeyance"); State v. Bollig, No. 115,408, 2018 WL 1976689, at *22 

(Kan. App. 2018) (unpublished opinion) (appellate court retained jurisdiction over the 

appeal despite remanding the matter to the district court for further findings of fact on a 

suppression issue); State v. Peterson, No. 116,931, 2018 WL 4840468, at *6 (Kan. App. 

2018) (unpublished opinion) (appellate court retained jurisdiction over the appeal despite 

remanding the matter to the district court to conduct a hearing under Batson v. Kentucky, 

476 U.S. 79, 88-89, 106 S. Ct. 1712, 90 L. Ed. 2d 69 [1986]), rev. denied 309 Kan. 1352

(2019). 

However, we find these authorities to be distinguishable. None of the above cases

support a district court's exercise of power to hold a criminal conviction in abeyance. 

Several cases have considered the ultimate fate of multiple convictions on 

alternatively charged counts. In State v. Sullivan, 224 Kan. 110, 112, 578 P.2d 1108 

(1978), disapproved of on other grounds by State v. Berry, 292 Kan. 493, 254 P.3d 1276 

(2011), one of the defendants received two convictions and sentences for first-degree 

murder arising out of a single killing. As the court wrote:

"As pointed out in State v. Jackson, 223 Kan. 554, 575 P.2d 536 (1978), two first degree 

murder convictions and sentences stemming from one homicide constitute double 

punishment and cannot be allowed to stand. When an information charges the defendant 

with premeditated murder and felony murder for the commission of a single homicide the 
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state may introduce evidence on both theories at the trial, but the trial court should 

instruct the jury on both theories in the alternative in order to avoid double convictions or 

sentences. If either or both theories are proven only one conviction of murder in the first 

degree results. Accordingly, one of the sentences for murder in the first degree . . . must 

be and the same is hereby set aside." (Emphasis added.) 224 Kan. at 112.

Actually, State v. Jackson reached a slightly different outcome. 223 Kan. 554, 575 

P.2d 536 (1978). There, the Kansas Supreme Court found "technical[]" error in the 

district court's jury "instruction regarding conviction on both theories" and in "the 

conviction under both theories," but did not reverse because Jackson received only one 

sentence. The court went on to "hold it to be better practice for the trial court to instruct 

the jury in the alternative on first degree murder so that no possibility of jury confusion 

results." 223 Kan. at 557. Thus, while the Sullivan court was unequivocal that only one 

conviction could result, the Jackson court apparently let both convictions stand. 

Nevertheless, as a later case clarified:

"It has long been the law of Kansas that an accusatory pleading in a criminal action may, 

in order to meet the exigencies of proof, charge the commission of the same offense in 

different ways. In such a situation, a conviction can be upheld only on one count, the 

function of the added counts in the pleading being to anticipate and obviate fatal 

variance between allegations and proof. Thus, it has been held proper to charge by 

several counts of an information the same offense committed in different ways or by 

different means to the extent necessary to provide for every possible contingency in the 

evidence." (Emphasis added.) State v. Saylor, 228 Kan. 498, 503, 618 P.2d 1166 (1980) 

(citing numerous cases). 

Thus, our caselaw fails to disclose any authority for the district court to hold an 

alternatively charged conviction in abeyance. Nor does K.S.A. 2020 Supp. 22-3424—or 

any other statute—provide such authority. The State suggests that nothing in K.S.A. 2020 

Supp. 22-3424 requires a district court to dismiss one of two guilty verdicts on alternative 

theories, but we find this proposition to be irrelevant. The infirmity of multiple 
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convictions on alternatively charged theories arises from double jeopardy concerns, not 

from statute. 

"The Double Jeopardy Clause of the Fifth Amendment provides: '[N]or shall any 

person be subject for the same offence to be twice put in jeopardy of life or limb.' U.S. 

Const. amend. V. The provision was made applicable to the States by the Fourteenth 

Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 

(1969). . . .

. . . .

"[T]he [United States Supreme] Court divides the protection created by the 

Double Jeopardy Clause of the Fifth Amendment into three broad categories, stating the 

clause protects against: (1) a second prosecution for the same offense after acquittal; (2) 

a second prosecution for the same offense after conviction; and (3) multiple punishments 

for the same offense." State v. Schoonover, 281 Kan. 453, 463, 133 P.3d 48 (2006).

This case raises double jeopardy concerns of multiple punishments for the same 

offense, as opposed to successive prosecutions.

The State asserts there is no harm—no "punishment," if you will—for a conviction 

alone on the alternative count charged, so long as that conviction is held by what is 

described "in abeyance." Therefore, it reasons, there cannot be a double jeopardy 

concern. The State's position is not persuasive. The very fact of a conviction, regardless 

of its label as "in abeyance," shelved, "in the pocket," or anything similar, is 

punishment—even without a concomitant sentence. As the United States Supreme Court

has explained: 

"The separate conviction, apart from the concurrent sentence, has potential adverse 

collateral consequences that may not be ignored. For example, the presence of two 

convictions on the record may delay the defendant's eligibility for parole or result in an 
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increased sentence under a recidivist statute for a future offense. Moreover, the second 

conviction may be used to impeach the defendant's credibility and certainly carries the 

societal stigma accompanying any criminal conviction. Thus, the second conviction, even 

if it results in no greater sentence, is an impermissible punishment. [Citations omitted.]"

Ball v. United States, 470 U.S. 856, 865, 105 S. Ct. 1668, 84 L. Ed. 2d 740 (1985).

Consequently, we find no support for the State's proposition that a district court 

has the power to hold an alternative conviction in abeyance. However, we find support 

for the State's fallback position: that the verdict on Count Two should merge by 

operation of law with the verdict on Count One and result in one conviction. In this 

respect, we diverge from the panel's analysis.

Primarily, our criminal caselaw has discussed the concept of merger in the context 

of either felony murder or multiplicity. See, e.g., State v. Pattillo, 311 Kan. 995, 1000,

469 P.3d 1250 (2020) (discussing felony-murder implications); Schoonover, 281 Kan. at 

478-95 (considering, and ultimately rejecting, continued application of the "single act of 

violence/merger" analysis to evaluate multiplicity). The PIK section on alternative 

charges advises, in relevant part, "If the jury returns appropriate verdicts of guilty to 

multiplicitous charges, the trial court must accept only the verdict as to the greater charge 

under a doctrine of merger." PIK Crim. 4th 68.090. The general rule elsewhere suggests 

that merger is the appropriate course of action when a jury returns guilty verdicts on two 

alternatively charged counts, as here. See, e.g. State v. Berry, 503 S.W.3d 360, 362 

(Tenn. 2015); 21 Am. Jur. 2d, Criminal Law § 21 (merger appropriate, inter alia, when 

multiple convictions represent "offenses that merely offer an alternative basis for 

punishing the same criminal conduct"). We agree.

We have not previously expounded upon the practical impact of merger on the 

situation the State appears to fear the most: where one alternatively charged conviction is 

later reversed on appeal, leaving only a dismissed alternative conviction behind. The 
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State presents one such example in Penn v. State, No. 105,777, 2012 WL 3171813, at *6

(Kan. App. 2012) (unpublished opinion), where the district court—at the State's 

request—dismissed alternatively charged convictions at sentencing, while the surviving 

convictions were later reversed for lack of sufficient evidence. Without detouring 

unnecessarily into the facts, the Penn panel ultimately concluded that, once dismissed, 

alternatively charged convictions were "rendered void and cannot be reinstated." The 

panel also opined that "[t]he court could not have merged the verdicts into single 

convictions for each act of rape because doing so would have yielded an alternative 

means problem," citing State v. Wright, 290 Kan. 194, 201-06, 224 P.3d 1159 (2010), for 

support. 2012 WL 3171813, at *6.

We are skeptical of the Penn panel's somewhat offhanded remark about the nature 

of merger, given the doctrinal underpinnings of our alternative means caselaw. Indeed, 

where a jury finds a defendant guilty of both alternatives charged, there is no issue with

juror unanimity, which lies at the core of our alternative means jurisprudence. See, e.g., 

State v. Brown, 295 Kan. 181, 188, 284 P.3d 977 (2012). When two alternatively charged 

jury verdicts merge into one conviction and an appellate court later reverses one of the 

verdicts based on insufficient evidence, for example, there is no concern that the jury was 

unclear as to which of the two theories it embraced—having returned unanimous guilty 

verdicts on both. Cf. State v. Sanchez, 282 Kan. 307, 319, 144 P.3d 718 (2006) ("[E]ven 

if a conviction on one underlying felony must be reversed, the felony-murder conviction 

can still be valid when, on a separate verdict form, the jury unanimously finds the 

defendant guilty of a different, legally sufficient felony that supports the felony-murder 

conviction."); Beier, Lurching Toward the Light: Alternative Means and Multiple Acts 

Law in Kansas, 44 Washburn L.J. 275, 300 (2005) ("Unless it is clear from a verdict form 

that the jury was unanimous on premeditated murder alone or on premeditated murder 

and on felony murder, the defendant cannot be sentenced to the harsher penalty.").
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Here, the two alternatively charged counts required proof of the same 

elements for a single crime: fleeing or attempting to elude a pursuing police 

vehicle while driving dangerously. See State v. Davis, 312 Kan. 259, 264-66, 474 

P.3d 722 (2020) (distinguishing elements of K.S.A. 2019 Supp. 8-1568[b][1] 

[dangerous driving while fleeing from an officer in pursuit, which creates an 

immediate public danger] from K.S.A. 2019 Supp. 8-1568[b][2] [evading capture 

for a felony, which does not necessarily present the same immediate public danger 

because there is no requirement of an active pursuit]). The two verdicts were, thus, 

multiplicitous. Schoonover, 281 Kan. at 497-98. Our opinion is limited to that 

circumstance. The merger of the two verdicts for multiplicitous, alternatively 

charged counts into one single conviction was the proper course of action. While 

the panel correctly diagnosed the problem of multiple convictions for the 

alternatively charged counts, we disagree with its proffered remedy for this 

problem, and reverse it in part on that basis.

We are sympathetic to the district court's attempted solution, in light of the 

unusual situation and the relative lack of precedential or statutory guidance on the proper 

course of action. Nevertheless, Vargas cannot receive two convictions for committing 

this single, alternatively charged crime. Accordingly, the alternatively charged jury 

verdict in Count One and Count Two must merge into one conviction.

CONCLUSION

The judgment of the Court of Appeals reversing the district court is affirmed in 

part and reversed in part on the issue subject to review. Judgment of the district court is 

reversed on the issue subject to review. The jury's verdicts of guilty in Count One and 

Count Two are merged as a matter of law. We remand this case to the district court with 

directions to enter an amended journal entry correctly reflecting that Vargas' second 
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verdict for fleeing or attempting to elude a law enforcement officer has merged with his 

first, resulting in a single conviction for fleeing or attempting to elude law enforcement.