The COA went on to review the record, especially's C.F.'s tesimony:
The State argues that unlike the victim in [State v. Ice, 27 Kan. App. 2d 1, 997 P.2d 737 (2000)], C.F. never affirmatively stated that she understood certain consequences of sexual intercourse, such as AIDS or venereal disease. It contends C.F. merely agreed with the defense attorney that a woman can get pregnant if a man has sex with her. It also contends that C.F. never testified that she had the right to resist advances and say no. According to the State, this all establishes that the level of C.F.'s understanding of sexual activities was less than that of the victim in Ice.
The problem with the State's argument is that it suggests that the absence of testimony is sufficient to establish that C.F. was incapable of giving consent. The argument, in essence, transfers to Wylie the burden to prove C.F. was capable of giving consent, when legally it was the State's burden to prove C.F. was not capable of giving consent. The argument is contrary to the elementary principle that the State has the burden to prove each element of the crime charged.
C.F.'s testimony was clear and lucid throughout her direct testimony and cross-examination. Her account was specific, and she answered the questions about the incident in completed thoughts. Her understanding of sex and its consequences is far from rudimentary.As a result, the COA held that the state had failed to introduce sufficient evidence of inability to consent.
The COA rejected Mr. Wylie's claims that this problem infected an aggravated burglary conviction, which it affirmed.
[Update: the state filed a PR on June 15, 2009. Mr. Wylie filed a cross-PR on June 22, 2009.]
[Further update: the KSC denied both parties' PRs and the mandate issued on April 1, 2010.]
[Further update: here is an Emporia Gazette article reporting on the resentencing in this case after the appeal.]