If you charge it, you have to prove it

Michelle Davis won in State v. Chafee, No. 94,218 (Kan. App. July 14, 2006), reversing an Osage County aggravated kidnapping conviction. The state charged Mr. Chafee with kidnapping with intent "to facilitate the commission of a crime, to-wit: murder in the second degree." The jury was instructed, however, that the state only had to prove that Mr. Chafee committed kidnapping with intent "to facilitate the commission of any crime." During deliberations, the jury asked whether the instruction included counts that weren't charged; the district court did not provide a meaningful response. The jury acquitted Mr. Chafee of homicide charges, but convicted of aggravated kidnapping.

The COA reversed holding that while the state is not required to charge a specific predicate crime, "if cannot charge him or her with aggravated kidnapping to facilitate murder and then convict him or her for kidnapping to facilitate a crime different from that which is identified in the information." The COA distinguished previous cases that had found such error harmless. Particularly given the jury's question and the acquittal of the homicide charges in this case, the COA held the error could not be harmless.

As a completely trivial aside, did you know that the words "to-wit" are technically called the "videlicet"? Just thought you'd like to know.

[Update: the state did not file a petition for review and the mandate issued on August 17, 2006]