State v. Alberty

No. 128,722 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. KENDRA L. ALBERTY, Appellant. SYLLABUS BY THE COURT Considering the criminal damage to property statute as a whole, the nature of the conduct proscribed is damaging property, rather than the victimization of any particular person. As a result, the unit of prosecution for criminal damage to property is the act of unlawfully damaging the property, unaffected by the number of persons or entities possessing an ownership interest in the damaged property. Appeal from Sedgwick District Court; TYLER ROUSH, judge. Submitted without oral argument. Opinion filed November 13, 2026. Affirmed in part, reversed in part, and dismissed in part. Dylan J. Pryor, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Kris W. Kobach, attorney general, for appellee. Before ARNOLD-BURGER, P.J., MALONE and PICKERING, JJ. ARNOLD-BURGER, J.: A jury convicted Kendra L. Alberty of three counts of criminal damage to property, after she keyed several cars in a Wal-Mart parking lot following a verbal altercation inside the store. She raises three issues on appeal. First, she asserts that one of the State's peremptory strikes was racially motivated, requiring 1 remand. We find that the district court did not err when it denied her motion related to jury selection. Second, she argues that her convictions for three counts of criminal damage to property were multiplicitous when her actions were part of the same unitary conduct, requiring that we dismiss two of the charges. We agree and order two of her criminal damage to property charges dismissed. And finally, she argues that the evidence was insufficient to convict her of criminal damage to property when there was no direct evidence presented of the value of the property she damaged. After reviewing the evidence presented, we find that it was sufficient. Thus, we affirm Alberty's convictions in part, but reverse Alberty's convictions and vacate the sentences for two counts of criminal damage to property and dismiss those charges. FACTUAL AND PROCEDURAL HISTORY In May 2023, the State charged Alberty with four counts of criminal damage to property under K.S.A. 21-5813(a)(1), alleging that she caused between $1,000 and $25,000 in damages each to four vehicles in January 2023 following a verbal altercation inside a Wal-Mart in Derby. Her case was ultimately tried to a jury, and all her claims of error relate to that trial. Following jury selection, Alberty raised an issue regarding the jury selection process pursuant to Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). She asserted that the prosecutor struck Juror 22 from the jury due to his race. A discussion ensued, which will be set out in more detail later. After denying Alberty's Batson challenge, the jurors were sworn in and the trial proceeded. 2  The State presented testimony from multiple witnesses at trial, including: a Wal- Mart employee who was verbally accosted by Alberty and who later provided security footage for the investigation; a Derby police detective who responded to a 911 call about the disturbance and investigated the incident; and the four individuals whose vehicles were allegedly damaged by Alberty in the parking lot. The State also provided the security videos showing Alberty's movements in the store and parking lot, photographs of the vehicles taken during the investigation, and estimates for the repairs of three of the vehicles. The jury convicted Alberty on three of the four counts of criminal damage to property. Alberty filed a motion for new trial that raised many issues, although it did not specifically address the Batson issue. In any event, the district court denied Alberty's motion for new trial and proceeded to sentencing. The court sentenced Alberty according to the presumptive disposition on the sentencing grid for the three charges. ANALYSIS The district court did not err in overruling Alberty's Batson challenge. Before we address whether the evidence was sufficient or the convictions were multiplicitous, this court must determine whether the jury itself was selected in a manner consistent with the United States Constitution. The Supreme Court has repeatedly recognized that the constitutional prohibition against racial discrimination in jury selection protects not only the litigants but also the excluded jurors and the integrity of the judicial process. Most recently, in Pitchford v. Cain, 608 U.S. 391, 398-99, 146 S. Ct. 1345, 225 L. Ed. 2d 11 (2026), the United States Supreme Court reaffirmed that courts must meaningfully complete the Batson inquiry before allowing the verdict to stand. If a juror is excluded on the basis of race, the resulting harm extends beyond the parties—it undermines public confidence in the fairness and integrity of the judicial process. 3 Alberty's claim on appeal. Alberty argues the district court erred in finding the State properly exercised a peremptory strike to remove Juror 22, a Black man, from the jury panel. See Batson, 476 U.S. at 89 (forbidding prosecutors from striking potential jurors solely based on race or on the assumption that jurors of the same race as the defendant would not decide a case impartially). In short, she contends the court's Batson analysis fell short because it "omitted the most crucial step" by failing to give her "the opportunity to prove why the prosecutor's strike was pretext for racial discrimination." Accordingly, Alberty asks this court to remand the case for a hearing on the final step of the Batson analysis. The State counters that Alberty fails to challenge the district court's rulings on the initial two steps of the Batson analysis and did nothing below to further litigate the issue, so there is no basis for reviewing her claim in full. Adherence to the three steps necessary in a Batson analysis. As the United States Supreme Court held in Batson, the State is forbidden from exercising peremptory strikes of jurors solely on account of their race or on the assumption that jurors of the same race as the defendant would not be able to consider the State's case impartially. Batson, 476 U.S. at 89; State v. Gonzalez, 311 Kan. 281, 302, 460 P.3d 348 (2020). When a party lodges what has become known as a Batson challenge, the district court follows a three-step analysis, which appellate courts review using different standards of review at each step. State v. Peters, 319 Kan. 492, 507, 555 P.3d 1134 (2024). Although the burden of production shifts throughout the analysis, "the ultimate burden of persuasion rests with, and never shifts from, the opponent [Alberty] of the strike." State v. Pham, 281 Kan. 1227, 1237, 136 P.3d 919 (2006). 4  The court found that Alberty had not met her burden on the first step. At the first step, the challenging party must make a prima facie showing that the peremptory strike was made based on race. Appellate courts exercise unlimited review over the district court's rulings on this showing. Peters, 319 Kan. at 508. A party alleging discrimination in jury selection "may make out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." Batson, 476 U.S. at 93-94. Critically, no single factor is determinative. As the Kansas Supreme Court held in State v. Trotter, 280 Kan. 800, 813, 127 P.3d 972 (2006), the trial court must avoid placing a determinative emphasis on any one factor. But the Supreme Court noted that one factor to consider in determining whether the State's peremptory challenges are discriminatory is the presence of other members of the same minority on the jury and the failure of the State to remove such members when given the opportunity. 280 Kan. at 812. And Kansas courts have routinely looked at the make-up of the jury pool in analyzing whether this first step has been met. In State v. Brown, 314 Kan. 292, 299, 498 P.3d 167 (2021), the Supreme Court found the defense had established a prima facie case upon a showing that the State used four of its eight peremptory strikes on Black prospective jurors, leaving one Black juror to serve as the alternate. The State also used a fifth peremptory strike on a mixed-race prospective juror. In State v. Davis, 37 Kan. App. 2d 650, 657-58, 155 P.3d 1207 (2007), a panel of this court held that the exclusion of the only 2 Black members of a 28-member panel—accomplished in the first three picks—established the prima facie case. Conversely, in State v. Sledd, 250 Kan. 15, 21-22, 825 P.2d 114 (1992), the Kansas Supreme Court found no prima facie case where the State used 2 of its 12 peremptory challenges to exclude 2 of 4 Black prospective jurors. 5  Initially, before any explanations were given by either side, upon being presented with counsel's oral Batson motion, the district court offered its "analysis of the demographics of the jury pool," and sought agreement from the parties regarding the makeup of the jury pool. "Juror No. 2 . . . is some sort of Hispanic based on appearance only, not because of his last name or anything else. "Juror No. 4 . . . is an African American female. "Juror No. 5 . . . is an African American male. "Juror No. 18 . . . appears to be an Asian male. "Juror No. 21 . . . appears to be a Hispanic female. "Juror No. 22, [S.R.], is an African American male. "And I believe everybody else is of a Caucasian—what we commonly call Caucasian skin color." The prosecutor agreed with the district court's assessment, while defense counsel said she "didn't realize [Juror No. 2] was Hispanic." The court explained he was "basing it off my observations of skin tone" and noted that Juror No. 2 "appeared to have a darker complexion than the other Caucasians in the jury pool." The court then asked defense counsel to explain a "basis for believing a prima facie showing of purposeful discrimination" in striking Juror 22. Counsel essentially argued that it made no sense for the prosecutor to strike the juror because he presented as being favorable to the prosecution. Counsel noted that Juror 22 was "a victim of some sort of property damage . . . that would lead to the conclusion that he would be more sympathetic to the State in a situation like this." She added that Juror 22's prior work experience as a diesel technician could benefit the State because "that would lead me to believe he knows cars" and he would have knowledge related to "the amount of damage done." Lastly, counsel argued that Juror 22 stated he could "follow the law and be impartial." Thus, counsel believed that prosecutor struck Juror 22 on the basis of his race. 6  The district judge asked the prosecutor to respond. But rather than respond to whether Alberty had established a prima facie case, the prosecutor launched into his reasons why the strike was not race-based. This could be problematic to our analysis because our caselaw is clear that step one becomes moot "[o]nce a prosecutor has offered a race-neutral explanation . . . and the trial court has ruled on the ultimate question of intentional discrimination." Hernandez v. New York, 500 U.S. 352, 359, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991). The Kansas Supreme Court recognized this holding, most recently in Peters, 319 Kan. at 509 (recognizing Hernandez). But the court did not jump to an analysis of the prosecutor's reasons, which would have demanded we move to step two of the Batson analysis as required by Hernandez and Peters. Instead, the judge stayed on task and immediately returned the discussion to the first factor by reminding the parties that the first step of the Batson analysis "is to determine if a prima facie showing of purposeful discrimination has occurred." The court explained that the State had also used a peremptory strike on Juror No. 18, who appeared to be an Asian male, while the defense had used peremptory strikes on Juror No. 2, "who's arguably some sort of non-white ethnicity," and Juror No. 21, "who was a Hispanic female." The court added that Juror No. 4 and Juror No. 5, who were both Black, remained on the jury. Thus, the court concluded that "the numbers alone do not suggest a prima facie showing of purposeful discrimination. Even disregarding the effect of the defense strikes, I can't say that the two strikes exercised by the State come close to a prima facie showing based on the numbers alone as suggested by State v. Trotter, 280 Kan. 800[, 813, 127 P.3d 972 (2006)]." Alberty did not challenge the court's ruling as part of her posttrial motions, nor did she challenge this finding on appeal. That alone is fatal to her claim here. See State v. Arnett, 307 Kan. 648, 650, 413 P.3d 787 (2018) (issues not briefed are considered waived and abandoned). 7  Yet, we find the court's reasoning sound. The numbers themselves do not point to a discriminatory intent. Alberty's claim is that the prosecutor struck a Black juror. Although we find the court's discussion of other strikes regarding other minorities irrelevant, the key is whether Alberty made a prima facie case. Her sole claim is that the prosecutor struck one Black potential juror out of three in the jury pool and racial animus can be inferred from the fact that Juror 22, based on select answers, would have been biased in the State's favor. Merely objecting to a juror's exclusion is not enough. See State v. Timley, 255 Kan. 286, 302, 875 P.2d 242 (1994) ("However, more than a mere objection is required."), disapproved of on other grounds by State v. Nunez, 298 Kan. 661, 316 P.3d 717 (2014). There was no claim by Alberty that the prosecutor asked different questions of this juror that would lead one to believe the decision was racially motivated. In fact, a review of voir dire reveals nothing unique about the questioning of Juror 22. The district court did not err in denying Alberty's Batson challenge. Accordingly, we need not reach the district court's alternative finding or Alberty's claim that the court denied her an opportunity to present reasons why the prosecutor's race-neutral reasons were pretextual. Alberty's convictions are multiplicitous. Alberty next argues for the first time on appeal that her convictions are multiplicitous so this court must dismiss two of them. She contends each of her convictions arose out of the same conduct, and that the statute only allows for a single conviction based on that conduct. Alberty concedes she did not raise a multiplicity claim with the district court and asserts several recognized exceptions to reviewing the issue for the first time on appeal. The State, however, does not contest that multiplicity claims have been addressed for the 8 first time on appeal to serve the ends of justice and to prevent a denial of fundamental rights under the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and section 10 of the Kansas Constitution Bill of Rights. See, e.g., State v. Hirsh, 310 Kan. 321, 338, 446 P.3d 472 (2019) (applying recognized exceptions to review newly raised multiplicity claim). We elect to exercise our prudential authority and consider the merits of Alberty's multiplicity claim for the first time on appeal. Appellate courts exercise unlimited review of a multiplicity claim because it raises a question of law. State v. Martin, 318 Kan. 538, 545, 544 P.3d 820 (2024). Appellate courts also exercise de novo review over any question of statutory interpretation necessary to resolve such a challenge. Hirsh, 310 Kan. at 338. The Double Jeopardy Clause of the Fifth Amendment "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). Here, Alberty contends her three criminal damage to property convictions fall within the third category. Kansas courts use a "well-established two-part test" in analyzing whether a defendant has received multiple punishments from the same offense. State v. Alston, 318 Kan. 979, 983, 551 P.3d 116 (2024) (citing Schoonover, 281 Kan. 453, Syl. ¶ 1). That test requires answering the following two questions: "(1) Do the convictions arise from the same conduct? and (2) By statutory definition are there two offenses or only one?" 281 Kan. at 496. Alberty's actions were part of the same unitary conduct. The first question is directed at determining whether the acts resulting in Alberty's convictions constituted unitary conduct, which means "the charges arise from the same 9 act or transaction." 281 Kan. at 496-97. "Double jeopardy concerns arise only if unitary conduct is at issue." State v. Dale, 312 Kan. 174, 178, 474 P.3d 291 (2020). Kansas courts generally assess whether a defendant's conduct was unitary using the following factors: (1) did the acts occur at or near the same time; (2) did the acts occur at the same location; (3) was there a causal relationship between the acts, in particular, whether there was an intervening event; and (4) was there a fresh impulse motivating some of the conduct? Schoonover, 281 Kan. at 507. According to Alberty, the evidence shows her conduct was unitary because it occurred in "barely a minute," in the same Wal-Mart parking lot, and there were no intervening events or fresh impulses for any portion of her conduct. As support, she directs our attention generally to one of the security videos showing her movements throughout the parking lot. The State concedes the acts in question occurred at or near the same time and in the same location, since Alberty damaged all three vehicles in around a minute and they were parked near each other. Yet, the State argues there was an intervening event and a fresh impulse that separated her conduct such that, at a minimum, it supported two convictions for felony criminal damage to property. The State notes that after Alberty damaged Malinda Jones' Dodge Durango and Sheyenne Sherfield's Toyota RAV4, she then stopped at her own vehicle momentarily to wait for another vehicle—which was parked next to Christopher Fant's Ford Fusion—to exit its parking space. Alberty proceeded to vandalize Fant's vehicle "[o]nly after it was clear," which the State asserts was "plainly an intervening event." The State also argues that Alberty "almost certainly" knew she had been spotted after damaging the first two vehicles, which created a fresh impulse that drove her to damage another vehicle "for some reason." Although the State accurately recites the order in which Alberty damaged the vehicles, it leaves out some key details that are helpful for the analysis. 10  First, the security footage shows Alberty's vandalism spree began when she approached Jones' Dodge Durango from the rear on the driver's side and walked alongside it. From the photographs admitted into evidence and Jones' testimony, we know that Alberty only scratched that side of the Durango. From there, Alberty proceeded straight to walk alongside the passenger side of Elizabeth Collins' Jeep, then go around to the driver's side of the Jeep and walk toward the front of the vehicle. Around the time Alberty moves from the Durango to the Jeep, a woman pushing a stroller walks into frame, looking in Alberty's general direction. Simultaneously, a different security camera captured a Wal-Mart employee who was collecting carts in the parking lot appearing to look toward Alberty as she walked behind the Jeep, then around the front of a vehicle parked to its left. Meanwhile, the woman pushing the stroller got the attention of the Wal-Mart employee and began pointing towards Alberty. After their conversation, the Wal-Mart employee appears to speak into a radio on his uniform and then walks toward the vehicles to assess the damage. Once Alberty arrived at Sherfield's Toyota Rav4, which was parked to the left of a cart corral two spaces away from the Toyota and to the right of Fant's Ford Fusion, she proceeded to walk between these two vehicles before arriving at her own vehicle parked in front of Fant's Ford Fusion. From the photographs admitted at trial and Sherfield's and Fant's testimonies, we know that Alberty scratched the driver's side of the Toyota Rav4 and the passenger side of the Ford Fusion. While Alberty is standing outside of her car, the vehicle parked to the left of Fant's Ford Fusion exits its parking space and drives away. Alberty then proceeds to walk toward the front of the Ford Fusion, and we also know from Fant's testimony, plus the photographs admitted at trial, that she scratched the hood of his vehicle. Based on this evidence, a few things stand out. First, although there was no evidence showing a discernable motive to commit these crimes, Alberty was not 11 concerned about being spotted vandalizing the vehicles because she did so where other customers could easily see her. Second, because the quality of the security video is not that clear, it is possible that Alberty damaged both the Toyota Rav4 and the Ford Fusion before arriving at her own car since there was damage to both vehicles where she passed between them. And third, assuming Alberty indeed damaged both vehicles, that would mean she committed two acts of vandalism on the Ford Fusion. Taken altogether, we have no difficulty in concluding that potentially being spotted was neither an intervening event nor fresh impulse because it was present from the start of Alberty's conduct. As a result, Alberty's actions were part of the same unitary conduct. The statutory definition of the crime informs a finding that there is only one unit of prosecution. Moving to the second question, because Alberty was convicted of multiple violations of the same statute, this court must apply the "unit of prosecution test." Schoonover, 281 Kan. at 497. Under that test, "the statutory definition of the crime determines what the legislature intended as the allowable unit of prosecution. There can be only one conviction for each allowable unit of prosecution." 281 Kan. at 497-98. This determination does not depend on "whether there is a single physical action or a single victim. Rather, the key is the nature of the conduct proscribed." 281 Kan. at 471. Criminal damage to property is defined as "by means other than by fire or explosive: [k]nowingly damaging, destroying, defacing or substantially impairing the use of any property in which another has an interest without the consent of such other person." K.S.A. 21-5813(a)(1). As Alberty notes, no Kansas appellate court has applied the unit of prosecution test to the criminal damage to property statute. But both parties liken it to the theft statute, of which "the 'nature of the conduct proscribed,' . . . is gaining unauthorized control over property rather than the victimization of any particular 12 person." State v. Hood, 297 Kan. 388, 393, 300 P.3d 1083 (2013) ("In other words, the gravamen of the offense is clearly a property crime rather than a person crime."). Because the State agrees that theft and criminal damage to property have similar actus reus elements, the only dispute on this point seems to be whether the mens rea element of the criminal damage to property statute necessarily incorporates the damaged property owner's individual interests and lack of consent. Put simply, the State's attempts to establish a meaningful distinction between the nature of the conduct proscribed by these two statutes are unavailing. Reviewing Hood in more detail is instructive. In Hood, the defendant was convicted of two counts of felony theft after admitting to stealing a bank bag and a purse from a restaurant. Hood arrived at the restaurant during business hours and at some point noticed the owner withdrew money from the cash register and placed it in a bank bag. Hood hid in a supply room until the opportunity arose to grab the bag and flee. Eventually, the owner placed the bank bag and her purse on a counter, then left out the restaurant's back door. Hood managed to take both items and ran away. Hood raised a multiplicity claim on direct appeal, arguing that he only committed one theft offense. This court disagreed, concluding first that Hood's conduct was unitary. State v. Hood, 44 Kan. App. 2d 145, 150, 234 P.3d 853 (2010). But on the second prong of the analysis, this court applied the unit of prosecution test and held that the theft statute's use of "the singular term 'the owner'" meant "the legislature defined the crime of theft as the unlawful taking of one owner's property." 44 Kan. App. 2d at 152. This court also considered the defendant's argument based on the so-called "single larceny doctrine," which would have required that he had "reasonable notice of the multiple owners" when he took the property. 44 Kan. App. 2d at 152. But the court concluded that the plain language of the theft statute did not impose a reasonable notice requirement and that the rationale conflicted with the double jeopardy and multiplicity analysis required by 13 Schoonover. Hood, 44 Kan. App. 2d at 153-54. Thus, this court affirmed Hood's two theft convictions. The Kansas Supreme Court granted Hood's petition for review, taking up the multiplicity issue. Although the court agreed with the panel's unitary conduct determination—which the State had also not cross-appealed—the court reached the opposite conclusion on the second prong of the Schoonover analysis. In particular, the court determined that "[t]he panel's isolation and elevation of the term 'owner' in the mens rea element of the theft definition create[d] a misdirection as to the nature of the crime," offering several reasons for support. Hood, 297 Kan. at 393. First, the court explained that the specific "act" proscribed by the theft statute "is the taking of the property, i.e., '[o]btaining or exerting unauthorized control over property.' K.S.A. 21-3701(a)(1)." 297 Kan. at 394. In other words, "[a] defendant's performance of that act is not affected by the happenstance that different items of stolen property may have separate owners or that there may be multiple owners of the stolen property." 297 Kan. at 394. Next, the court noted that the Legislature designated theft as a nonperson crime. 297 Kan. at 394. Similarly, the severity levels for the crime primarily depended on "the value of the property taken rather than the number or character of the owners affected." 297 Kan. at 394. The lone exception was a specific version of theft that applied when a defendant stole from three separate mercantile establishments within a 72-hour period, which was designated as severity level 9 nonperson felony without regard to the value of the property. But the court pointed out even that version of the offense punished "the unlawful taking from three separate owners as only one offense," refuting the panel's conclusion that the Legislature intended to define theft based on a single owner's property. 297 Kan. at 394. The court also agreed with the panel's rebuff of the single larceny doctrine as part of the analysis, explaining "[o]ne would presume that, in most instances, a thief will not 14 care a whit who owns the property being stolen, but rather the larcenous act is perpetrated to permanently acquire the property to the exclusion of whomever may have previously laid claim to it." 297 Kan. at 395. Finally, the court explained that "even if we were to view the use of the singular form of 'owner' in the theft statute as sending a mixed signal on legislative intent, the most that could be said is that the statute is ambiguous. Ambiguity triggers the rule of lenity, requiring us to construe the statute in Hood's favor anyway." 297 Kan. at 396. Contrary to the State's insistence, all these reasons can essentially be mapped onto the criminal damage to property statute. First, the specific act prohibited by the statute is "by means other than by fire or explosive . . . damaging, destroying, defacing or substantially impairing the use of any property in which another has an interest without the consent of such other person." K.S.A. 21-5813(a)(1). Put another way, the criminal damage to property statute proscribes the unauthorized damaging of another person's property. Just like the theft statute, a defendant's performance of that act is not affected by the happenstance that different items of damaged property may have separate owners or that there may be multiple owners of the damaged property. See Hood, 297 Kan. at 394. To further illustrate this point, unlike the theft statute, criminal damage to property allows a conviction when the damage has occurred "without the consent of" a person who merely "has an interest." K.S.A. 21-5813(a)(1). It would be illogical to assign more weight to this language in assessing the mens rea element for the offense, given that the theft statute uses more direct language when referring to a singular "owner." K.S.A. 21- 5801(a) ("Theft is any of the following acts done with intent to permanently deprive the owner of the possession, use or benefit of the owner's property or services."). 15  Second, criminal damage to property is classified as a nonperson crime, and all the severity levels depend on the value of the property and the respective value of the damage caused by the defendant. See K.S.A. 21-5813(c). Third, even if the single larceny doctrine could be applied to the criminal damage to property statute, Hood acknowledges that it has no place in the double jeopardy and multiplicity analysis required under Schoonover. Hood, 297 Kan. at 395-96. This court is duty bound to following Kansas Supreme Court precedent, absent an indication of a departure. State v. Patton, 315 Kan. 1, 16, 503 P.3d 1022 (2022). There is thus no reason to believe that the single larceny doctrine should be grafted onto the second prong of the Schoonover analysis. And finally, the language in the criminal damage to property statute that refers to the damaged property "in which another has an interest without the consent of such other person" is even more ambiguous than the reference to a singular "owner" in the theft statute. K.S.A. 21-5801(a); K.S.A. 21-5813(a)(1). So that ambiguity would trigger the rule of lenity, under which we would then construe the statute in Alberty's favor anyway. Thus, we conclude that the criminal damage to property statute only allows one unit of prosecution and find that Alberty's convictions are multiplicitous. But we are compelled to take a moment to address the dissent's conclusion that Alberty's convictions are not multiplicitous. The dissent argues that the fact that criminal damage to property is a nonperson crime is irrelevant. Instead, it compares these facts to those in State v. Buchanan, 317 Kan. 443, 531 P.3d 1198 (2023). In Buchanan the Supreme Court considered, and rejected, a multiplicity argument in the context of aggravated arson. Buchanan was convicted of six counts of aggravated arson for setting fire to an apartment complex, which resulted in damaging six apartments, each of which was occupied by a human being. On appeal, he argued that his six convictions were 16 multiplicitous. The Supreme Court rejected the argument. It found that in the case of aggravated arson, while the focus is on the property, including an apartment, there is an additional requirement that there be a human being in that apartment. That is what makes it a person felony under K.S.A. 2022 Supp. 21-5812(c)(2). The court concluded that "[a] defendant charged with aggravated arson committed under K.S.A. 2022 Supp. 21- 5812(b)(1)—that is, arson committed upon a property in which there is a person—does not suffer a double jeopardy violation when convicted on multiple counts arising from damage by fire to separate apartments, each with a person inside." 317 Kan. 443, Syl. ¶ 1. The dissent focuses on the singular form of the property, an apartment, as supporting the Supreme Court's conclusion that each apartment supports a separate unit of prosecution. But that ignores the court's additional caveat, that each apartment had a person inside. We believe this is significant. Neither the Supreme Court, nor the Court of Appeals panel that reached the same conclusion in its decision, even mentioned the Hood case, a nonperson crime. See State v. Buchanan, No. 123,100, 2022 WL 3694882 (Kan. App. 2022) (unpublished opinion). We suspect that if Buchanan had set fire to a vacant or abandoned apartment building, the result would have been the same as here. Charging him with six counts of arson would have been multiplicitous. But those facts will have to be addressed another day. We are not persuaded by the dissent under the facts of this case. Because Alberty's convictions are multiplicitous, we must dismiss two of her convictions. 17 There was sufficient evidence to support the criminal damage to property convictions. Alberty challenges the sufficiency of the evidence supporting her criminal damage to property convictions, arguing the State needed to prove the value of each vehicle she damaged was over $1,000 to sustain a felony conviction. Appellate courts review sufficiency challenges by viewing all the evidence in the light most favorable to the State to determine whether a rational juror could have found the defendant guilty beyond a reasonable doubt. State v. Palmer, 321 Kan. 302, 305, 578 P.3d 97 (2025). "We do not reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of witnesses." State v. Mendez, 319 Kan. 718, 723, 559 P.3d 792 (2024). Criminal damage to property is defined as "by means other than by fire or explosive: [k]nowingly damaging, destroying, defacing or substantially impairing the use of any property in which another has an interest without the consent of such other person." K.S.A. 21-5813(a)(1). The severity level of the crime depends on the extent of the damage to the property. Relevant here, "[c]riminal damage to property if the property . . . is damaged to the extent of at least $1,000 but less than $25,000 is a severity level 9, nonperson felony." K.S.A. 21-5813(c)(2). If the damaged property "is of the value of less than $1,000 or is of the value of $1,000 or more and is damaged to the extent of less than $1,000," the crime "is a class B nonperson misdemeanor." (Emphasis added.) K.S.A. 21- 5813(c)(3). The Kansas Supreme Court has held that for this statute's purposes, "the value of damages to a vehicle cannot exceed the vehicle's total value." State v. Sasser, 305 Kan. 1231, 1244, 391 P.3d 698 (2017) (citing State v. Jones, 247 Kan. 537, 542, 802 P.2d 533 [1990], disapproved of on other grounds State v. Gunby, 282 Kan. 39, 144 P.3d 647 [2006]). Accordingly, to prove that Alberty was guilty of a severity level 9 felony as 18 charged, there must also be sufficient evidence that the vehicle's value exceeded the value of damages. See Jones, 247 Kan. at 543. Alberty argues simply that the State provided no evidence at trial about the value of any of the damaged vehicles for which she was convicted. The State rightly admits that no specific values were presented at trial but nonetheless contends there was circumstantial evidence from which we can infer each vehicle was worth more than the $1,000 cutoff. Jones testified she was the owner of the grey 2021 Dodge Durango, which she had purchased only two months before the incident. The vehicle was new when she bought it and had no scratches or damage before Alberty damaged it. From the photographs admitted at trial, we can also see the condition of the vehicle and observe some details about its features, including that it had badging to show that it had a "HEMI" engine. Moreover, from the repair bill, we can see that the odometer reading was only 13,943 miles when Jones took it in for repairs roughly three weeks after the incident, and that the total repair cost was $3,101.04 of which she paid a $500 deductible. Fant testified he was the owner of the black 2016 Ford Fusion, which he drove to the Wal-Mart that day without any scratches present. Upon leaving the store, he came upon the officers photographing the scratch marks on his vehicle. From the photographs admitted at trial, we can also see the condition of the vehicle at the time of the incident. Likewise, from the repair estimate, we can see Fant's vehicle was an SE model with front wheel drive, four doors, and had a 2.5 liter engine. Finally, the estimated repair cost was $1,741.72, of which Fant would be responsible for a $750 deductible. Sherfield testified she owned the 2010 Toyota RAV4 for around six or seven years before the incident but did not know the mileage. There was already some damage to the rear of her vehicle from hitting a mailbox earlier in the year, which was depicted on the 19 photographs admitted at trial. Upon leaving the store, Sherfield learned that there were key scratches "all over" her vehicle. Sherfield further testified that the total repair cost related to the key scratches was "[a]bout $2,600" of which she paid a $500 deductible. Although not mentioned by the State, the jury was specifically instructed that it could use its "common knowledge and experience in regard to the matter about which a witness has testified." Such an instruction is customary in criminal cases, and each party referenced it during their closing arguments. Of relevance, Alberty's defense counsel directed the jurors to rely on their common knowledge and experience to assess whether the damage amounts were "reasonable when you look at the pictures of the cars [and] for the damage that was allegedly done." If the jurors' common knowledge and experience included the ability to asses