If you complete it, it's not an attempt

Carl Folsom won in State v. Gonzales, No. 97,572 (Kan. App. Aug. 8, 2008), reversing a Finney County attempted aggravated sexual battery conviction. The COA agreed that the record contained no evidence that the crime was not completed, which is an element of attempt. Judge Leben explaining that while there was ample evidence to support a finding of a completed crime, the state charged the wrong offense and was stuck with that decision:

I recognize that the result of our decision may seem unjust. The jury concluded that Gonzales had done an intentional act against A.C. with the intent to arouse sexual desires while overcoming her resistance by force or fear. Yet Gonzales' conviction must be reversed, and he cannot be restried for the crime that fits the evidence--aggravated sexual battery. Becausse of the Doube Jeopardy Clause of the United States Constitution, a person may not be tried for a greater offense after an initial trial for a lesser crime. See Brown v. Ohio, 432 U.S. 161, 165-69 (1977).

But the result is due to the charging decision that the State made. It charged Gonzales only with an attempt offense. The prosecutor apperas to have recognized at preliminary hearing the possibility that the evidence showed an actual touching. When the district court declined to amend the charge based on the evidence presented at preliminary hearing, the State still had the option to dismiss the case altogether and refile it with the correct charge. The only penalty at that point would have been that a new preliminary hearing woudl have been required. Instead, the State proceeded to trial on a charge that did not match the evidence. Double jeopardy no bars any retrial, and we cannot uphold a conviction that is not supported by the evidence.

Nice to see the COA hold the state to its charging decision.

[Update: the state filed a PR on September 8, 2008].

[Further update: the KSC denied the state's PR and the mandate issued on February 13, 2009.]