Insufficient evidence of lewd fondling or touching

Christina Kerls won in State v. Warren, No. 104,662 (Kan. Sept. 28, 2012), obtaining reversal of a Seward County aggravated indecent liberties conviction.  The KSC acknowledged that there may have been evidence of a crime presented, but not evidence of the crime charged:

Here, the State presented no evidence that Warren touched his penis in order to arouse or satisfy his or E.W.'s sexual desires. Rather, if anything, the evidence showed that Warren exposed his penis to arouse or satisfy the sexual desires of E.W. or himself, or both. As Warren points out, while touching his penis in order to expose it may have met the definition of lewd and lascivious behavior, it clearly was not sufficient to establish the charge of aggravated indecent liberties with a child.

Furthermore, the KSC addtionally held that not only was the evidence insufficient in relation to the charge, it was insufficient in relation to the offense as the jury was instructed:

Further, even if the State had proved an intentional touching under the aggravated indecent liberties statute, that evidence would nevertheless have been insufficient to prove that charge for a third reason—i.e., the evidence did not support the elements of the charge as outlined in the jury instruction. 

The trial court instructed the jury on aggravated indecent liberties as follows: 

"To establish this charge [of aggravated indecent liberties with a child], the following claims must be proved:  

1. That the defendant submitted to lewd fondling or touching of his person by removing his penis from his pajama, with intent to arouse or satisfy the sexual desires of either E.W. or the defendant, or both."

The State presented no evidence that Warren "submitted to" any lewd fondling or touching, and it seems elementary that one cannot "submit to" one's own actions. Merriam-Webster defines "submit" as "1(a): to bow to the will or authority of another: . . . (b) to allow oneself to become subjected." Webster's Third New International Dictionary 2277 (1993).

Some people might think this is a "technicality."  But I don't think Due Process is a technicality.  Its foundational.