concurring in part and dissenting in part: I agree with most of the majority’s opinion. Germane to this separate opinion, I concur with the majority’s syllabus statements that “[pjroving a defendant’s age of 18 or older is an element of the off-grid Jessica’s Law aggravated indecent liberties offense,” and that if the trial record does not include sufficient evidence of defendant’s age, “the defendant may be exposed to punishment only for the on-grid form of the crime.” Likewise, I agree with the majority’s opinion statements that “[tjhe trial record in this case does not show over*213whelming and essentially uncontroverted evidence that Hernandez was over the age of 18 years old or older at the time of his crimes,” and that the failure of proof on the age element would ordinarily lead us to “remand for resentencing for the on-grid form of the crime.”
Further, I appreciate that an argument can be made that the question of whether, upon retrial, the State can prosecute Hernandez for the off-grid version of aggravated indecent liberties with a child may not be ripe for us to decide today, given that the State has not yet attempted such a retrial. If the majority had simply made that holding and stopped, I probably would not have written separately, even though I believe that judicial economy is better served when we provide explicit directions to the district court as to what it is permitted to do upon remand. But the majority went much further, providing argument as to why this court might find it permissible for Hernandez to be tried for the off-grid version of the crime after his conviction for the on-grid version has been reversed and remanded for retrial. I am convinced that, at this point in the case, there is absolutely no possibility of retrying Hernandez for the off-grid crime and, in my view, we should not be giving the bench and bar any such misdirection.
I believe the majority gets started on the wrong track by viewing the question as some esoteric, albeit artificial, Apprendi issue of whether the elements necessary to convict Hernandez of off-grid aggravated indecent liberties with a child are different depending upon which constitutional right one is discussing. The apparent suggestion is that the defendant’s age of 18 years or older is only an element of the off-grid crime when analyzing the Sixth Amendment’s right to jury trial but not when analyzing the Fifth Amendment’s prohibition against multiple trials, i.e., defendant’s age is an element for sentencing enhancement purposes but not for double jeopardy purposes. The majority’s suggestion cannot withstand scrutiny under our Kansas statutes; it runs counter to our prior cases remanding for on-grid resentencing, and it makes scant sense. Moreover, the majority’s rebanee on Monge v. California, 524 U.S. 721, 118 S. Ct. 2246, 141 L. Ed. 2d 615 (1998), is so far off-base as to cry out for an immediate pick-off play.
*214I begin by relating some of die disconnects with common sense that I discern in the majority’s reasoning. First, a rational person’s notion of fundamental fairness should raise a due process red flag when the majority proposes that the elements necessary to convict a person of a particular crime can be fluid, i.e., different elements can apply depending upon which constitutional provision an appellate court is considering. The citizens of this State are entitled to know what the State has to prove to obtain a conviction for a particular crime, regardless of what issues might later arise on appeal. Likewise, Kansas citizens are entitied to know tiiat the current prosecution will preclude any subsequent prosecution on the same facts. If some fact is an element of the crime being prosecuted, the State must prove it beyond a reasonable doubt to obtain a conviction — period—end of story. There is no parallel universe in which the labeling of an issue as an “Apprendí violation” transforms an element of a particular crime into something that occupies a lesser status, whether or not one uses such terms as “functional equivalent,” “sentencing fact,” or “enhancement factor.” An element is an element is an element.
Next, before considering the disposition of this appeal, the majority performed the function of a jury: it looked at all of the evidence presented in the trial relative to Hernandez’ age; it assessed the credibility of the victim’s mother’s testimony and declared it to be “weak”; it weighed tire testimony of the victim’s father against other testimony and determined it did not establish Hernandez’ age; and it made the ultimate factual finding that there was not overwhelming and essentially uncontroverted evidence that Hernandez was age 18 or older. Yet, after having effectively found Hernandez not guilty of the off-grid crime because its factual findings revealed that the State had failed to prove beyond a reasonable doubt all of the elements necessaxy for such a conviction, the majority then says it is unsure whether it determined the sufficiency of the evidence. I submit that if this court is going to do the fact-finding that the jury was precluded from doing, it should take ownership of what it has done and admit that the reversal of the off-grid conviction was based on its finding of insufficient evidence *215and amounts to an acquittal on that charge. I would find any other characterization to be disingenuous.
The majority acknowledges that our remedy when the State fails to properly charge or effectively prove the off-grid version of the offense has historically been to vacate the off-grid sentence and remand for resentencing for the on-grid version of the offense. The statutoiy effect of that remedy will be discussed later. For now, I think it important to note that we have not ordered a retrial. The State has been allowed to keep the lesser offense conviction which its evidence supported. Yet, die majority is now saying that if the State commits even more errors, so that the validity of the lesser offense conviction is also called into question, then the State might well be able to retry the defendant on the off-grid version. It seems to me tiiat, under such a scenario, a determined prosecutor, who regrets his or her failure to present evidence of the defendant’s age at trial but nevertheless covets an off-grid sentence, could take the self-serving position on appeal that he or she committed other errors so egregious as to require reversal of the lesser included conviction, so that the State might get a do-over on the off-grid prosecution. I find it nonsensical that the more errors the State causes the better off it will be on remand.
Turning to our statutes, K.S.A. 21-3504(a)(3)(A) defines the crime with which Hernandez was charged, i.e., aggravated indecent liberties with a child. If the victim is under the age of 14, the crime is a severity level 3, person felony, and it is an off-grid person felony “[wjhen the offender is 18 years of age or older.” K.S.A. 21-3504(c). Although the majority refers to defendant’s age as being a “sentencing fact,” the statute defining the crime clearly makes that fact an element of the off-grid version of the offense. If the State proves all of the elements of the offense except for the defendant’s age, it has obtained a conviction for an on-grid person felony, according to the statute that defines the elements of the offense.
Although the majority opinion here may be equivocal or contradictory about the character of the fact of defendant’s age, the majority’s author previously acknowledged that our caselawhas clearly established “that the defendant’s age at the time of the offense is *216an element of the crime if the State seeks to convict the defendant of the more serious, off-grid enhanced offense.” (Emphasis added.) State v. Reyna, 290 Kan. 666, 676, 234 P.3d 761, cert. denied 131 S. Ct. 532 (2010). Moreover, Reyna specifically rejected “[t]he State’s argument that tire age issue is merely a sentencing factor.” 290 Kan. at 676. It is curious that the majority would now suggest that a defendant’s age might not really be an element of off-grid aggravated indecent liberties with a child, but rather it might be merely a “sentencing fact,” whatever that is.
If we continue to apply our established characterization of a defendant’s age as being an element, then when the jury did not make a finding that Hernandez was over the age of 18 at the time of the offense and the State did not present sufficient evidence at trial to permit this court to declare that the failure to prove the missing element was harmless error, we simply cannot affirm a conviction for the off-grid version of the crime. That result obtains regardless of whether Apprendi is added to the calculus.
And where the evidence is insufficient to support a conviction for a particular crime, the appropriate remedy is to reverse that conviction without retrial. See State v. Scott, 285 Kan. 366, Syl. ¶ 2, 171 P.3d 639 (2007) (“If an appellate court holds that evidence to support a conviction is insufficient as a matter of law, the conviction must be reversed; and no retrial on the same crime is possible.”). But as the majority notes, we have “ordinarily” remanded the case for on-grid resentencing for the lesser offense. Perhaps we should have strictly held the State to its argument that it was, in fact, seeking a conviction for the off-grid version of the crime and not for the lesser included offense. Then, we would have simply reversed the ineffectual off-grid conviction — no retrial; no re-sentencing. But we did not do that.
In retrospect, it would appear that tire only justification for our “ordinarily” remanding for on-grid resentencing after finding a failure of proof on the defendant’s age in Jessica’s Law cases is that we implicitly found that the State had proved or the defendant had not challenged the remaining elements of the offense and that those remaining elements constituted a conviction on the lesser included, on-grid offense. Such a remand for resentencing on a *217lesser included offense upon failure of proof of an element of the greater offense is not unprecedented. See, e.g., State v. Jones, 247 Kan. 537, 547-48, 802 P.2d 533 (1990) (failure of proof damaged property worth more than amount needed to convict of charge of felony criminal damage to property resulted in remand for resent-encing for misdemeanor version of offense). In this case, that would mean an implicit finding that the State had effectively convicted Hernandez of the severity level 3 person felony version of aggravated indecent liberties with a child, notwithstanding its failure to prove all of the elements of the off-grid offense. See K.S.A. 21-3504(c) (without defendant’s age, offense is on-grid).
In other words, our “ordinaiy” remedy of remand for on-grid resentencing is predicated upon the notion that the jury effectively convicted the defendant of the lesser included offense. Of course, it is a rather fundamental principle, codified in this State in K.S.A. 21-3108(l)(c), that “[a] conviction of an included offense is an acquittal of the offense charged.” Then, if the lesser included offense is overturned, the double jeopardy constraints on retrial are likewise codified in this State. K.S.A. 21-3108(5) provides that “[i]n no case where a conviction for a lesser included crime has been invalidated, set aside, reversed or vacated shall the defendant be subsequently prosecuted for a higher degree of the crime for which such defendant was originally convicted.”
The application of K.S.A. 21-3108(5) in this case is really simple and straightforward. The State did not effectively obtain a conviction for off-grid aggravated indecent liberties with a child. Instead, the evidence was only sufficient to support a conviction for the on-grid, severity level 3 version of the offense, i.e., the jury originally convicted Hernandez of the lesser included offense. Upon our reversal of the lesser included offense conviction on other grounds, K.S.A. 21-3108(5) prohibits any subsequent prosecution for the off-grid (higher degree) version of the crime.
Apparently, the majority is unsure whether the failure of proof of the element which distinguishes the off-grid version of the crime from the on-grid version (defendant’s age) can be construed as a conviction for the lesser included offense. If that construction is not correct, then this court’s “ordinary” remedy has been egre*218giously erroneous. We cannot send a case back to the district court with instructions to resentence the defendant for a certain severity level of a crime, unless the defendant has been convicted of that crime by the jury. The remedy would be outright reversal of the off-grid crime for insufficiency of the evidence.
On the other hand, if the majority cannot say that Hernandez was convicted of the lesser included offense because of its belief that defendant’s age is really not an element for double jeopardy purposes, then our “ordinary” remedy is still erroneous. The correct remedy in that event would be to remand for a new trial on the off-grid charge, rather than for on-grid resentencing. But I think we fashioned the correct remedy.
Although the foregoing is sufficient for my purposes, I take the liberty to comment briefly on Monge, which the majority apparently finds compelling. To me, that case is distinguishable and inapplicable here.
For one thing, Monge addresses California law, not Kansas law. Specifically, the case involves that State’s “three strikes” law that enhances a convicted felon’s sentence if he or she has two qualifying prior convictions for “serious felonies.” 524 U.S. at 724.
The Monge dispute involved whether a prior assault conviction qualified as a serious felony; there were no issues with the elements of the marijuana charges for which Monge was convicted. The district court found that the prior conviction did qualify, but on appeal the evidence was found to be insufficient to support the trial court’s characterization of the prior conviction as a serious felony. The question before the United States Supreme Court was whether double jeopardy prohibited the State from having a second opportunity to provide sufficient evidence to establish the prior assault charge as a qualifying conviction under the three-strikes law.
To put Monge in perspective with respect to Kansas law, the issue involved establishing the defendant’s correct criminal history, akin to our determining whether a prior felony conviction should be construed as a person felony or nonperson felony. In that respect, Monge is not even within the purview of an Apprendi analysis. Apprendi specifically excluded the fact of a prior conviction from its holding. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 *219S. Ct. 2348, 147 L. Ed. 2d 435 (2000); see also Reyna, 290 Kan. 666, Syl. ¶ 8 (any fact, other than the fact of a prior conviction, must be presented to jury). The fight in Monge was about the fact of the prior assault conviction, so Apprendi would not have applied even if it had been decided at the time of Monge. Nevertheless, one certainly cannot interpret Monge as permitting a retrial of a fact that was an essential element of the crime being prosecuted but was not proved at the first trial.
In sum, if I were to provide any information to the district court on what it is permitted to do on remand, I would make it clear to the court that a retrial cannot include the off-grid form of tire crime. To do otherwise invites a potential waste of time and resources during a period when our judicial system cannot withstand any additional burdens.
Beier and Moritz, J.J., join the foregoing concurring and dissenting opinion.