Clearly, the plain language of K.S.A. 21-3412a required the State to prove beyond a reasonable doubt that, among other things, Wendy was 18 years of age or older when the alleged incident occurred. If there was no evidence presented which went to prove this element, then defendant's conviction must be reversed.We have made arguments similar to this with regard to the age of the defendant in some Jessica's Law cases. The same reasoning should apply.
The State argues it presented circumstantial evidence which satisfied this element, pointing to the fact both Wendy and the defendant testified they had been married for 2 ½ years, and defendant stated the marriage ceremony took place in Las Vegas. Based on this evidence, the State argues the jury could have inferred Wendy was at least 18 years old when the alleged incident occurred because, according to the State, under Nevada law, a person must be at least 16 years old to marry. See Nev. Rev. Stat. § 122.020 (2004). The State assumes the jurors had personal knowledge of Nevada's marriage laws because the State failed to present any evidence at trial addressing this issue. The State further argues, based on Wendy's appearance and demeanor at trial, the jury could have concluded that she was 18 years old at the time of the incident.
The State's arguments must be rejected. First, while it is true that a conviction may be sustained by circumstantial evidence, guilt may never be based on inference alone. Reasonable presumptions and inferences may be drawn from facts established by direct or circumstantial evidence, but a presumption may not be based upon a presumption or an inference upon an inference. A jury simply cannot speculate or infer through its own observations or personal knowledge that an element of a crime has been proven. The State must put on evidence, circumstantial or direct, that establishes every element necessary to sustain a guilty verdict.
[Update: the state did not file a PR and the mandate issued on April 30, 2009].