Mutually exclusive verdicts require new trial

Rachel Pickering won in State v. Hernandez, No. 101,719 (Kan. April 12, 2012), obtaining a new trial in a Sedgwick County aggravated indecent liberties with a child prosecution.  The unusual circumstances in the case were summarized by the KSC:

Over Hernandez' objection at trial, the jury was instructed on both aggravated indecent liberties and the lesser included offense of attempted aggravated indecent liberties. On separate pages of the verdict form, the jury returned guilty verdicts on both charges. Hernandez moved for a mistrial, claiming that there was a fundamental error in the jury verdicts. In response, the State likened the situation to one where a defendant is charged with alternative counts and the jury convicts on both alternative counts.

The KSC held that the inconsistent and internally mutually exclusive verdicts required a new trial:

A mistrial was appropriate under K.S.A. 22-3423(1)(b) because these verdicts are legally and factually inconsistent. The trial court could not legally enter judgment on either verdict because the jury's finding on the other verdict precludes such judgment. Aggravated indecent liberties with a child requires a completed crime. Attempted aggravated indecent liberties with a child requires that the crime was not completed. Logic prevents these crimes from merging, and K.S.A. 21-3107(2)(c) prohibits conviction of both the crime charged and an attempt to commit the crime charged.

In this case, the trial court abused its discretion in denying Hernandez' motion for a mistrial. The trial court's action was based on an error of law, that is, the trial court erroneously concluded that it could deal with the problem at sentencing as if the charges had been brought in the alternative, or as if the charges merged so that the defendant was only convicted of the greater offense. As a result, defendant's conviction must be reversed and the case remanded for a new trial.

This is a nice win in light of a lot of cases that have said inconsistent verdicts aren't themselves a Due Process violation.  This case demonstrates that the mutually exclusive nature of a completed crime and an attempt presents a different problem.