                                              No. 111,749

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                           STATE OF KANSAS,
                                               Appellee,

                                                    v.

                                           ROBBY HEIRONIMUS,
                                               Appellant.


                                   SYLLABUS BY THE COURT

1.
        The offenses of leaving the scene of an injury accident under K.S.A. 2011 Supp.
8-1602 and failure to give information under K.S.A. 2011 Supp. 8-1604 are
multiplicitous.


2.
        General criminal intent is a necessary element of leaving the scene of an injury
accident under K.S.A. 2011 Supp. 8-1602. Accordingly, the State must allege and the
instructions must include the element that the defendant intentionally, knowingly, or
recklessly left the scene of an injury accident.


        Appeal from Reno District Court; TIMOTHY J. CHAMBERS, judge. Opinion filed August 21, 2015.
Affirmed in part, reversed in part, vacated in part, and remanded with directions.


        Rick Kittel, of Kansas Appellate Defender Office, for appellant.


        Andrew R. Davidson, assistant district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellee.




                                                     1
Before BRUNS, P.J., HILL and ARNOLD-BURGER, JJ.


       ARNOLD-BURGER, J.: On a dark night, Jeff Nusser decided to jaywalk across
Main Street. Before he reached the other side, Robby Heironimus struck him with the
right brake pedal of his motorcycle. Heironimus left the scene but turned himself into the
police the next day when he realized that he hit Nusser. The State charged him with five
offenses stemming from this incident, and a jury convicted him of all charges.
Heironimus raises several issues on appeal. Because the charges of leaving the scene of
an injury accident and failure to give information following an accident are
multiplicitous, we are required to reverse his conviction for failure to give information
and vacate his sentence. Likewise, Heironimus' conviction for failure to report an injury
accident must be reversed because the statute under which he was charged was repealed
at the time of the offense. Finally, because general criminal intent is a necessary element
of leaving the scene of an injury accident and the court committed reversible error by not
including this element in its instructions to the jury, we must reverse Heironimus'
conviction for leaving the scene of an injury accident and remand for a new trial.
Heironimus does not challenge his remaining convictions for driving on a suspended
license and illegally displaying his vehicle tag, so those convictions stand.


                          FACTUAL AND PROCEDURAL HISTORY


       One night in May 2012, just after 9 p.m., Nusser decided to walk from his
apartment to the Hastings store in Hutchinson. He was wearing a black shirt, black pants,
black shoes, and had headphones in his ears. He also had long dark hair. At one point
during his walk, he elected to cross Main Street at a place not marked by a crosswalk. He
looked both ways, ensured that he saw no headlights in either direction, and began to
cross the street. He crossed the southbound lanes of traffic successfully and paused in the
middle of the street to double-check for any northbound headlights. The nearest


                                              2
headlights he could see were at 17th Street, at least 2 blocks south of his position, so he
proceeded to cross the northbound lanes of traffic.


       As Nusser crossed the street, a motorcycle, driven by Heironimus, struck him.
Nusser remembered "hearing the engine and seeing a flash of the headlight right before
[he] felt the impact." The accident resulted in the amputation of his leg 6 to 8 inches
down from the knee and a permanently dislocated bone in his left hand.


       At roughly the same time, Holly Zizumbo and her son were in an automobile
traveling in the area. She and several motorcycles all waited together at a red light at the
intersection of 17th and Main. Her headlights were on, and street lights illuminated the
area. She described the motorcycles in her lane as "Harley-type" cruiser-style bikes and
the motorcycles in the other lane as "crotch rockets." Of the two men driving Harley-style
bikes, one wore a bandanna. Zizumbo noticed that his motorcycle also had what she
termed "ape hanger" handlebars. When the light changed, the motorcycles accelerated,
"racing in front of" Zizumbo and pulling far away from her despite the fact that she
accelerated to 40 miles per hour. She estimated their speed at 60 miles per hour. As she
drove, she witnessed what she "thought was somebody on the motorcycle wrecking." She
testified that a body "[flew] up in the air," over the head of one of the Harley-style
motorcyclists, "and hit the ground." The motorcycles all left the scene, but Zizumbo
parked and discovered Nusser lying on the ground. His leg injury was severe and "there
was pieces of bone all over the ground."


       The two drivers of the crotch-rocket style motorcycles, Rane Daines and Daulphus
Koeppen, also witnessed the accident. Daines explained that the driver with the ape
hanger handlebars kept "[r]evving his motor up like he was wanting to race." When the
light changed to green, Daines witnessed the motorcycle driving "erratically" and fast
enough that he and Koeppen "wasn't even going to try and catch him." Daines and
Koeppen both said that the motorcycle in question suffered a "speed wobble" ahead of

                                              3
them. Daines saw a man "flying in the air," while Koeppen saw "a kid on the side of the
road." But both men said that the driver of the motorcycle with the ape hangers wore a
bandanna. Both witnesses also claimed that they later saw that same man stop "in front of
the Fairgrounds" to inspect his motorcycle.


       Nearly 24 hours after the accident, Heironimus called the Hutchinson Police
Department and informed the duty officer that he believed he hit something while riding
his motorcycle the night before. When an officer arrived at his home, Heironimus said he
remembered feeling something hit his right foot but explained that he only called in after
reading an article and speaking to others about the accident. An examination of
Heironimus' motorcycle revealed a dent on the bracket around the brake pedal, which
Heironimus admitted "was bigger now than what it was before." Heironimus confirmed
that he wore a bandanna on the night of the accident. He also told the officer that
although he did not stop when something struck his foot, "the pain was severe enough to
get his attention." Nusser's DNA was not recovered from Heironimus' motorcycle,
although Heironimus admitted he had washed the motorcycle that day.


       Based on this sequence of events, the State charged Heironimus with five
offenses: leaving the scene of an injury accident, failure to report an injury accident,
driving while suspended, failure to give information, and illegal display of tag. The case
proceeded to jury trial.


       At the close of evidence, the parties and the district court discussed the mental
state required to commit leaving the scene of an injury accident, failure to report an injury
accident, and failure to give information. Heironimus contended that because the statutes
in question lacked a clear legislative intent to impose absolute liability, the complaint and
jury instructions needed to include a mental state. The State, which had amended the
complaint to remove the word "intentionally" a few days earlier, contended that the


                                              4
statutes in question imposed absolute liability. The district court agreed with the State and
denied Heironimus' request to include mental states in the jury instructions.


       The jury convicted Heironimus of all five offenses. The district court sentenced
him to 18 months of probation with a total underlying sentence of 24 months'
imprisonment. Heironimus appealed.


                                          ANALYSIS


The offenses of leaving the scene of an injury accident and failure to give information are
multiplicitous.


       Heironimus first contends that leaving the scene of an injury accident and failure
to give information are multiplicitous. Specifically, he argues that because one element of
leaving the scene concerns the driver's failure to stay and provide his required
information, failure to give information is a lesser included offense. Whether two
convictions are multiplicitous is a question of law over which this court exercises
unlimited review. State v. Schoonover, 281 Kan. 453, 462, 133 P.3d 48 (2006).


       Multiplicity is defined as "the charging of a single offense in several counts of a
complaint or information" and violates both the United States and Kansas Constitutions
by imposing multiple punishments for a single offense. 281 Kan. 453, Syl. ¶ 11.
Although our Kansas courts long used what is commonly referred to as the "same-
elements test" to examine these issues, our Kansas Supreme Court recently determined
that a statutory test for multiplicity has supplanted this traditional two-step analysis. State
v. Hensley, 298 Kan. 422, 436, 313 P.3d 814 (2013). This statutory test provides that "the
defendant may be convicted of either the crime charged or a lesser included crime, but
not both" and provides four potential definitions of lesser included crime. K.S.A. 2011
Supp. 21-5109(b). Heironimus argues that failure to give information is a lesser included

                                               5
crime under the second of these definitions, as it is "a crime where all elements of the
lesser crime are identical to some of the elements of the crime charged." K.S.A. 2011
Supp. 21-5109(b)(2).


       K.S.A. 2011 Supp. 8-1602(a) provides:


               "The driver of any vehicle involved in an accident resulting in injury to, great
       bodily harm to or death of any person or damage to any attended vehicle or property shall
       immediately stop such vehicle at the scene of such accident, or as close thereto as
       possible, but shall then immediately return to and in every event shall remain at the scene
       of the accident until the driver has fulfilled the requirements of K.S.A. 8-1604, and
       amendments thereto."


       The penalty imposed for leaving the scene of an accident depends on the damage
the accident causes. K.S.A. 2011 Supp. 8-1602(b). Leaving the scene of an accident that
caused great bodily harm is a level 8 person felony. K.S.A. 2011 Supp. 8-1602(b)(3).


       As it happens, K.S.A. 2011 Supp. 8-1604 is the statute under which failure to give
information is charged. The relevant section of that statute requires that the driver of a
vehicle involved in an accident must provide specific information "to any police officer at
the scene of the accident or who is investigating the accident" and "immediately make
efforts to determine whether any person involved in such accident was injured or killed"
and render aid to those hurt. K.S.A. 2011 Supp. 8-1604(a).


       Heironimus' argument regarding the multiplicitous nature of these two offenses is
based entirely on City of Overland Park v. Estell, 8 Kan. App. 2d 182, 653 P.2d 819
(1982), rev. denied 232 Kan. 875 (1983). There, the defendant was convicted of violating
three sections of a municipal traffic ordinance. He argued that these sections, which this
court described as being "in substantial conformity" with the then-current versions of
leaving the scene of an injury accident, failure to give information, and failure to report
                                                    6
an injury accident, were multiplicitous because the latter two constituted lesser included
crimes of the first. 8 Kan. App. 2d at 185.


       After studying the ordinance sections involved, this court agreed with the
defendant. 8 Kan. App. 2d at 185. The court reasoned that section 23 of the ordinance—
the section similar to what is now K.S.A. 2011 Supp. 8-1602—required that a driver
remain on the scene of an accident until that driver supplied all the information required
by section 25—the section similar to K.S.A. 2011 Supp. 8-1604. 8 Kan. App. 2d at 185.
Because the defendant's violation of section 23 stemmed from his failure to supply the
information listed in section 25, the court determined that


       "the elements necessary to prove a violation of section 25 were identical to those required
       to prove a violation of section 23. As a violation of section 25 was necessarily proved by
       the proof of a violation of section 23, section 25 was a lesser included offense of that
       proscribed by section 23." 8 Kan. App. 2d at 185.


       In other words, because the defendant's conviction for leaving the scene of an
injury accident relied on his failure to give information, failure to give information
constituted a lesser included crime and that conviction was reversed. 8 Kan. App. 2d at
185.


       The State concedes that Estell controls. Here, Heironimus clearly failed to stop
and remain at the scene of the accident until he fulfilled the requirements of K.S.A. 2011
Supp. 8-1604. See K.S.A. 2011 Supp. 8-1602(a). But because his failure to comply with
those requirements is an essential element of the offense, his failure to give information is
a lesser included crime of leaving the scene of an injury accident. As such, he cannot be
convicted of both crimes. See K.S.A. 2011 Supp. 21-5109(b). Therefore, like in Estell,
his conviction for failure to give information must be reversed and his sentence vacated.
See 8 Kan. App. 2d at 188.


                                                    7
General criminal intent is a necessary element of leaving the scene of an injury accident.


       Heironimus next argues that the district court committed an error of law by
allowing the State to prosecute him without proving his intent. Heironimus contends that
knowledge of an accident is an essential element of leaving the scene of an injury
accident and that the State needed to prove that element. By allowing the State to amend
this element out of the complaint and failing to instruct the jury regarding that mental
state, Heironimus argues, the district court committed a reversible error of law.


       Because this question concerns the interpretation of a statute, this court exercises
unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12, cert. denied 135 S. Ct. 91
(2014).


       Heironimus' argument relies heavily on our Kansas Supreme Court's holding in
State v. Wall, 206 Kan. 760, 482 P.3d 41 (1971). There, the court examined sections 518
and 520 of the traffic code—or what are now K.S.A. 2011 Supp. 8-1602 and 8-1604,
respectively—and explained:


       "Section 518 specifically relates to section 520, the clear intent of the two being to
       require such a driver to stop and then furnish specific information and appropriate aid for
       the benefit of any occupant of the other vehicle who may have been injured in the
       collision. Section 520 prescribes an affirmative course of action to be taken by the driver.
       Implicit therein must be the element of recognition or awareness on the part of that driver
       of the fact of collision. We cannot believe the legislature intended a penalty to be
       imposed for failing to follow that course of action if a driver was in fact unaware of the
       occurrence of collision. We do not imply an accused must have positive knowledge of the
       nature or extent of injury resulting from the collision . . . . We think it sufficient if the
       circumstances are such as to induce in a reasonable person a belief that collision has
       occurred; otherwise a callous person might nullify the humanitarian purpose of the statute
       by the simple act of immediate flight from an accident scene without ascertaining exactly
       what had occurred." 206 Kan. at 764.

                                                       8
       The year after the offense in Wall occurred, however, the legislature passed
several statutes concerning criminal intent and culpable mental states. See K.S.A. 21-
3201 (Weeks 1974); K.S.A. 21-3202 (Weeks 1974); K.S.A. 21-3204 (Weeks 1974).
These statutes provided, among other things, that "[a] person may be guilty of an offense
without having criminal intent if the crime is a misdemeanor and the statute defining the
offense clearly indicates a legislative purpose to impose absolute liability for the conduct
described." K.S.A. 21-3204 (Weeks 1974).


       Although the legislature has amended and recodified these statutes over time, it
remains that "[i]f the definition of a crime does not prescribe a culpable mental state, a
culpable mental state is nevertheless required unless the definition plainly dispenses with
any mental element." K.S.A. 2011 Supp. 21-5202(d). Additionally, the legislature is now
free to define felony crimes as absolute liability offenses. See K.S.A. 2011 Supp. 21-5203
("A person may be guilty of a crime without having a culpable mental state" when the
crime is "a felony and the statute defining the crime clearly indicates a legislative purpose
to impose absolute liability for the conduct described.").


       Application of these concepts to our Kansas traffic offenses is complicated. For
example, in Estell, the defendant argued that the district court erred by not instructing the
jury regarding his mental state at the time he left the scene of the accident. This court
determined that "the offense charged under section 23 of the ordinance, substantially that
proscribed by K.S.A. 8-1602, is an absolute liability offense when considered in light of"
what is now K.S.A. 2011 Supp. 21-5203. 8 Kan. App. 2d at 187. Although the court
reasoned that a defendant could potentially defend against such a charge by showing he
or she "had somehow been rendered unaware of the accident" or had been removed from
the scene against his or her will, the court also found those scenarios inapplicable to the
facts of the case before it. 8 Kan. App. 2d at 187. This court later applied Estell's
reasoning regarding absolute liability when determining whether compulsion is a defense


                                              9
to leaving the scene of an accident. See State v. Riedl, 15 Kan. App. 2d 326, 327-29, 807
P.2d 697 (1991).


       Citing Estell, Riedl also reiterated that a driver could defend against the charge by
showing he or she was rendered unaware of the accident. 15 Kan. App. 2d at 329. This
logic runs afoul of the general rule that "[t]he only proof required to convict an individual
of an absolute liability offense is that the individual engaged in the prohibited conduct."
State v. Creamer, 26 Kan. App. 2d 914, Syl. ¶ 1, 996 P.2d 339 (2000). After all, if
engaging in the prohibited conduct—that is, leaving the place where an accident
occurred—is all that is required to convict an individual of leaving the scene of an
accident, the driver's knowledge of that accident should be irrelevant. Moreover, these
cases are decades old and reflect earlier versions of what are now our culpable mental
state statutes.


       In a recent case concerning issues of search and seizure and hot pursuit, this court
appeared to recognize the necessity for some level of mental culpability for this offense.
Specifically, the court noted that "[w]hile leaving the scene of an accident reflects a
degree of deliberateness uncharacteristic of most traffic violations, that does not
distinguish it from the run of misdemeanors requiring at least general criminal intent."
State v. Dugan, 47 Kan. App. 2d 582, 601, 276 P.3d 819 (2012). Of course, this reference
is dicta, but it also highlights the inherent difficulty in Estell's holding.


       Moreover, our Kansas Supreme Court has applied the above principles concerning
criminal intent and culpable mental state to another traffic-related offense. In State v.
Lewis, 263 Kan. 843, 852-58, 953 P.2d 1016 (1998), our Supreme Court considered
whether knowledge of one's status as a habitual traffic violator constituted an essential
element of the offense. After first determining that the criminal intent statutes in effect at
the time applied to offenses under the traffic code, the court moved on to consider
whether the habitual violator offense fell under the exception to the intent requirement.

                                               10
After examining the criminal intent statutes, which the court concluded were "in accord
with the 'contemporary view' disfavoring strict liability offenses," the court concluded
that the exceptions did not apply and that the habitual violator offense therefore required
a culpable mental state. 263 Kan. at 857-58.


       Relying entirely on Estell, the State urges this court to find that K.S.A. 2011 Supp.
8-1602 imposes absolute liability under K.S.A. 2011 Supp. 21-5203 and affirm
Heironimus' conviction. However, the plain language of K.S.A. 2011 Supp. 21-5203 and
the foregoing analysis preclude such a simple solution. Because the accident in the instant
case caused great bodily harm, Heironimus was charged under K.S.A. 2011 Supp. 8-
1602(b)(3) and therefore with a felony. K.S.A. 2011 Supp. 21-5203(b) provides that for
felonies, liability without a criminal intent can only be imposed when the statute defining
the felony offense "clearly indicates a legislative purpose to impose absolute liability."
There is no such clearly indicated legislative purpose in the statute at issue here. See
K.S.A. 2011 Supp. 8-1602(a). Additionally, nothing in the statute "plainly dispenses with
any mental element." K.S.A. 2011 Supp. 21-5202(d).


       For the first time in oral argument, the State asserted that because K.S.A. 2011
Supp. 8-1602(b)(5) specifically requires that the person know that the accident resulted in
injury or death in order to be guilty of a level 5 person felony for leaving the scene, the
absence of such a requirement in K.S.A. 2011 Supp. 8-1602(b)(3) makes it clear that no
intent is required. We do not find this argument persuasive. K.S.A. 2011 Supp. 8-
1602(b)(5) simply increases the penalty if the person knows that injury or death resulted
from the accident. This specific knowledge requirement—that injury or death resulted—
is necessary to enhance the penalty. It does not speak to the general criminal intent and
knowledge that an accident occurred at all. To the contrary, other offenses lacking a
mental element, such as possession of firearms on certain government property, clearly
announce themselves as absolute liability offenses. See K.S.A. 2014 Supp. 21-6309(a)
("It shall be unlawful to possess, with no requirement of a culpable mental state, a

                                             11
firearm . . . ." [Emphasis added.]). Other examples with similar language concerning the
lack of mental state include smoking in enclosed areas or public meetings, illegal
ownership or keeping of an animal, and one instance of unlawful conduct of
cockfighting. K.S.A. 2014 Supp. 21-6110(a); K.S.A. 2014 Supp. 21-6415(a); K.S.A.
2014 Supp. 21-6417(a)(1).


       Because a culpable mental state is required unless the definition of an offense
plainly dispenses with that requirement or clearly indicates a legislative purpose to
impose absolute liability and K.S.A. 2011 Supp. 8-1602 lacks both these indicators, it is
clear that criminal intent must be an element of that offense. As provided by the criminal
intent statutes, if a crime lacks a prescribed culpable mental state, "'intent,' 'knowledge' or
'recklessness' suffices to establish criminal responsibility." K.S.A. 2011 Supp. 21-
5202(e). The State therefore needed to plead and prove that Heironimus intentionally,
knowingly, or recklessly left the scene of an injury accident in violation of the
requirements of K.S.A. 2011 Supp. 8-1602(a).


Amendment of the complaint to omit the intent requirement did not prejudice Heironimus.


       Four days prior to trial, the State amended the complaint against Heironimus to
omit its allegation that he intentionally failed to stop his vehicle.


       Heironimus insists that this amendment to the complaint prejudiced his defense.
Although he attacked the sufficiency of the instruction related to this charge before the
district court—an issue that will be addressed next—he did not attack the sufficiency of
the complaint below. This court must therefore review his challenge based on the
standard first announced in State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), overruled
on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003). Under this
standard, Heironimus must show that the complaint (1) prejudiced him as he prepared his
defense; (2) "impair[ed] his ability to plead the conviction as a bar to a later prosecution";

                                              12
or (3) limited his substantial rights. State v. Tapia, 42 Kan. App. 2d 615, 621, 214 P.3d
1211 (2009), aff'd 295 Kan. 978, 287 P.3d 879 (2012).


       But a review of the record runs directly counter to this claim. Heironimus
emphasized his lack of intent at trial. He cross-examined witnesses concerning Nusser's
dark clothes and his continued statements that although he knew he hit something, he
only realized he possibly hit a person the day after the accident. In short, nothing suggests
that this last-minute change to the complaint prejudiced him.


Failing to instruct the jury that Heironimus intentionally, knowingly, or recklessly left the
scene of an injury accident did prejudice Heironimus and was reversible error.


       Turning to the jury instruction issue, Heironimus clearly objected to the proposed
instructions before the district court. As such, this court must engage in a multistep
process to determine whether the district court erred by failing to include the element of
intent. Specifically, the court must "'use an unlimited review to determine whether the
instruction was legally appropriate,'" consider whether sufficient evidence supported the
instruction, and determine whether the instructional error, if any occurred, was harmless.
State v. Smyser, 297 Kan. 199, 203-04, 299 P.3d 309 (2013).


       The foregoing analysis demonstrates that including the criminal intent element of
the crime charged was not only legally appropriate but required under the circumstances.
There is no dispute that sufficient evidence supported giving the instruction, as the State
charged Heironimus with the offense in question and Heironimus clearly raised the issue
of his knowledge of the accident at trial. Because the instruction was legally and factually
appropriate, the question this court must focus on is whether omission of the element at
issue is harmless. See State v. Daniels, 278 Kan. 53, 62, 91 P.3d 1147 (holding that the
omission of an essential element of an offense from the jury instructions is subject to the
harmless error test), cert. denied 543 U.S. 982 (2004).

                                             13
       In recent years, our Kansas courts have repeatedly considered the harmlessness of
omitted elements. For example, in Daniels, the district court omitted the element of
bodily harm from a robbery instruction. Adopting the United States Supreme Court's test
on this issue, our Supreme Court held that "'where a reviewing court concludes beyond a
reasonable doubt that the omitted element was uncontested and supported by
overwhelming evidence, such that the jury verdict would have been the same absent the
error, the erroneous instruction is properly found to be harmless.'" 278 Kan. at 62. In
other words, if the record contains no evidence contesting the omitted element, the
omission is harmless. 278 Kan. at 62. Based on this test, the court determined that the
error was harmless due to the overwhelming evidence of bodily harm. 278 Kan. at 62-63.


       In State v. Garza, 290 Kan. 1021, 1031-32, 236 P.3d 501 (2010), our Supreme
Court applied this test when determining that failure to include the element of the
defendant's age was harmless because there was "no dispute" about his age at trial. But in
another case, when the district court failed to instruct the jury on an essential element of
fleeing or attempting to elude law enforcement—namely, the element defining the five
moving violations the driver committed while fleeing—our Supreme Court reversed the
conviction because it could not determine whether the jury correctly found five moving
violations. State v. Richardson, 290 Kan. 176, 179, 183-84, 224 P.3d 553 (2010).


       Here, the issue of Heironimus' intent is indeed in dispute. The officer who talked
to Heironimus testified that Heironimus believed he might have struck something while
riding his motorcycle but never acknowledged that he hit Nusser. In fact, according to the
officer, Heironimus stated that he only learned of the accident when he read an article the
next day. He also essentially turned himself in when he realized his involvement. The
only evidence of any sort of impact was the slight additional damage to Heironimus'
brake pedal, and there was no blood or gore on the motorcycle. The other witnesses,
including those who drove behind Heironimus, admitted generally that Nusser wore dark
clothes and that they only noticed him after the accident occurred. This testimony runs

                                             14
counter to the claim that Heironimus intentionally left the scene of the accident. It
therefore cannot fairly be said that the omitted element was supported by overwhelming
evidence. Unlike in Daniels and Garza, it is possible that a jury properly instructed on all
elements could have found that Heironimus lacked the required mental element and
acquitted him. As such, the error in this case is not harmless.


       In conclusion, our Kansas criminal intent statutes and caselaw make clear that a
culpable mental state is an essential element of leaving the scene of an injury accident.
Although the late amendment to the complaint removing that element failed to prejudice
Heironimus, excluding that element from the jury instructions constituted reversible
error. Heironimus' conviction on this count must be reversed and remanded for new trial.


Heironimus' conviction for failure to report an injury accident must be reversed because
the statute under which he was charged was repealed.


       Heironimus next argues that his conviction for failure to report an injury accident
must be reversed because the legislature repealed the statute criminalizing this conduct in
July 2011. Because the statute no longer existed at the time he struck Nusser, Heironimus
contends that he could not have legally been convicted of this offense.


       It is a well-settled statement of law that the "'criminal statutes in effect at the time
of the offense control the charge as well as the sentence resulting therefrom.'" State v.
Edwards, 28 Kan. App. 2d 379, 380, 15 P.3d 855 (2000). Here, failure to report an injury
accident, once codified at K.S.A. 2010 Supp. 8-1606, no longer existed in May 2012. See
K.S.A. 2011 Supp. 8-1606. As such, at the time Heironimus failed to report the accident
at issue in this case, failing to report such an accident was not a criminal offense.


       The State concedes this issue, admitting that it looked up the charging language on
what it believed to be the Kansas Legislature's website. A review of the website in

                                              15
question reveals that the State in fact relied on a now-defunct website not run by the
Kansas government. Regardless, Heironimus' conviction on this count must be reversed
and his sentence vacated.


       In sum, we reverse Heironimus' convictions for failure to report an injury accident
and failure to give information and vacate his sentences for those offenses. We reverse
his conviction for leaving the scene of an injury accident and remand for a new trial.
Because Heironimus does not challenge his convictions for driving on a suspended
license and illegally displaying his vehicle tag, those convictions are affirmed.


       Affirmed in part, reversed in part, vacated in part, and remanded with directions.




                                             16
