Monday, March 21, 2011

Must prove all elements

Joanna Labastida won in State v. Witten, No. 103,476 (Kan. App. March 18, 2011), obtaining a reversal of a Pratt County conviction of sale within 1000 feet of a school. In order to sustain a conviction for sale within 1000 feet of a school, the state has to prove that the school was "a structure used by a unified school district or an accredited nonpublic school for student instruction or attendance or extracurricular activities of pupils enrolled in kindergarten or any of the grades one through 12." In this case, the state put on evidence that the transaction took place near Liberty Middle School, which was operated by USD 382, but did not present any evidence of what purposes or functions took place at that building:
Although the State presented evidence that Liberty Middle School was operated by a school district, no witness testified as to whether the building was used for one of the purposes set forth in the statute. Witten justifiably relies on State v. Star, 27 Kan. App. 2d 930, 10 P.3d 37, rev. denied 270 Kan. 903 (2000). In Star, the evidence at trial established that the transactions occurred within 1,000 feet of "Hickok School." The evidence included a diagram of the area of the sale, including the school parking lot and school grounds. However, no evidence was presented that Hickok School was a structure used by a school district "for any of the uses listed in the statute." The Star court found that in order to sustain a conviction for the crime of the sale of cocaine within 1,000 feet of a school, the State was required to present evidence that the structure referred to as a school satisfied the definition in K.S.A. 1999 Supp. 65-4161(d). "Such evidence is necessary to prove a necessary element of the offense, and where lacking, a jury cannot be allowed to speculate or infer through its own observations that the structure complies with the statutory definition of a school."

On appeal, the State argues that the court should take judicial notice of the function of the school under K.S.A. 60-409 and that "[w]ell informed persons in Pratt County . . . are aware of the existence and nature of Liberty Middle School." However, the Star court specifically rejected the State's arguments that members of the jury could bring their common sense and background of experiences to take notice that the building was operated as a school.
Because the state failed to put on sufficient evidence, the COA remanded for resentencing for simple sale.

[Update: Mr. Witten filed a PR from the part of the decision he lost.]

[Further update: the KSC denied Mr. Witten's PR and the mandate issued on October 11, 2011.]

No comments: