Can't retry a person if state did not provide sufficient evidence at a first trial

Rick Kittel won in State v. Lacy, No. 117,884 (Kan. App. August 24, 2018), obtaining reversal of a Sedgwick County aggravated indecent liberties with a child conviction. Similar to a recent KSC case (blogged about here), the state charged Mr. Lacy with soliciting a child to touch the person of another, but provided evidence that he touched a child with improper intent. On appeal, Mr. Lacy argued that the state failed to prove the crime it charged. The state attempted to argue that this was merely a jury instruction error. The COA held that the jury instructions should follow the charging document and that the state charged the solicitation form of the offense in this case. Following the recent KSC precedent, the COA held that the state had failed to provide evidence of the crime it charged.

The state also argued that, even if the conviction should be reversed, the proper remedy would be to remand for a new trial. The COA rejected this claim as well:

It's clear, then, that the evidence would never support the soliciting charge the State brought against Lacy. Presumably the State hopes that once the case returns to the district court, that court will allow the State to amend its charge to one the facts would support.

But the time for amending a charge is before the jury reaches a verdict, not after conviction, appeal, and remand to the trial court. A Kansas statute, K.S.A. 22-3201(e), puts that limit on the State's charging authority: "The court may permit a complaint or information to be amended at any time before verdict . . . ." (Emphasis added.) This provision may be the reason the State's brief didn't explicitly mention a plan to amend the charging document if we sent the case back for a new trial—the time for amending the complaint ended long ago. 

. . . .

 Here, as we've explained, the State's evidence never supported the charge made in the complaint. It still won't support that charge if we send it back for retrial. In any case, when the evidence at trial doesn't support the crime charged in the State's complaint, the proper remedy is to reverse the conviction without sending the case back for a new trial. 

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

[Update: the state filed a motion for rehearing on September 10, 2018.]

[Further update: the state field a petition for review on September 24, 2018.]

[Further update: the COA denied the state's motion for rehearing on September 27, 2018.]

[Further update: the KSC granted Mr. Lacy's motion to expedite and denied the state's petition for review on February 28, 2019. The appellate mandate issued on March 7, 2019.]