Saturday, August 12, 2006

Attempted attempt instruction

Rick Kittel won in State v. Sierra-Medrano, No. 94,580 (Kan. App. Aug. 4, 2006)(unpublished), obtaining a new trial on an trafficking in contraband conviction from Meade County. The instruction on trafficking required the jury to find that the "defendant intentionally took or attempted to take marijuana into or upon the grounds of a correctional institution." The COA followed State v. Martens, 274 Kan. 479, 54 P.3d 960 (2002) and State v. Cherry, 279 Kan. 535, 112 P.3d 224 (2005) and held that the instruction was clearly erroneous because the crimes of trafficking and attempted trafficking were combined into one count without separately setting out the elements of attempt.

[Update: the state did not file a petition for review and the mandate issued on September 7, 2006]

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