Proof by clear and convincing evidence is not proof beyond a reasonable doubt

Randall L. Hodgkinson won in State v. Baumgarner, No. 121,092 (Kan. App. January 22, 2021), reversing a Sumner County criminal possession of a firearm conviction. The state charged Mr. Baumgarner with possession of a firearm by a person "who is or has been . . . subject to involuntary commitment." The only evidence introduced by the state on the question of Mr. Baumgarner's status was an order from a previous commitment hearing finding, by clear and convincing evidence, that Mr. Baumgarner was such a person. The COA first held that the statute requires proof of actual status, not merely a previous adjudication: 

the State's position cannot be easily reconciled with the governing statutory language in several respects. We, therefore, reject a construction of the statute making adjudication under the Care and Treatment Act either a necessary or a sufficient condition to convict for criminal use of a weapon. The exercise also demonstrates why Baumgarner's take is truer to the statutory language.

The COA then held that the evidence in this case, proof by clear and convincing evidence, was insufficient to support a conviction beyond a reasonable doubt:

the only evidence the State presented bearing on Baumgarner's mental status was a certified copy of the order of adjudication entered in 2015. And that order included a finding by clear and convincing evidence that Baumgarner had a mental illness permitting his involuntary commitment. Under Kansas law, clear and convincing evidence is a degree of proof greater than a preponderance and less than beyond a reasonable doubt. If proved by clear and convincing evidence, a fact has been established to be "highly probable." Not to belabor the point, a "highly probable" fact has not been proved beyond a reasonable doubt.

 Accordingly, without some additional evidence, the finding in the 2015 order adjudicating Baumgarner could not and did not prove his mental status beyond a reasonable doubt. Jurors properly instructed on the differing burdens of proof could not conclude otherwise. It is no rejoinder to say that the order was some circumstantial evidence that Baumgarner may have been mentally ill beyond a reasonable doubt. In the absence of other evidence, such an inference would be no more than unsupported speculation or conjecture—a vaporous notion insufficient to support a criminal conviction.

As a result, the COA reversed the conviction and sentence.

[Update: the state filed a PR on March 1, 2021.]