Saturday, September 01, 2018

State is required to prove crime it charged

 Michelle A Davis won in State v. Fitzgerald, No. 112,492 (Kan. August 10, 2018), obtaining reversal of a Cowley County aggravated criminal sodomy conviction. The state charged that Mr. Fitzgerald to cause a child "to engage in oral copulation with another person." But the parties all proceeded as if Mr. Fitzgerald had been charged with engaging in sodomy with the child himself. And all of the evidence presented evinced the latter and no evidence showed the former. The COA had reversed the conviction in 2015 and the state sought review in the KSC. At the KSC, the state tried to recast this as a defective complaint issue. The KSC rejected this redirection and held that the state had failed to provide sufficient evidence of the crime it charged. The KSC followed its precedents in State v. Laborde (blogged about here) and State v. Dickson to held that the state has to prove the type of crime it charged:

Today the statute we referenced in Laborde remains in effect, and the maxim it recites remains true, despite the changes wrought by Dunn since Laborde was decided. The Kansas Constitution may endow district courts with subject matter jurisdiction over criminal cases generally. But the charging document in any specific case still sets the outer limits of the conviction or convictions that can result. See State v. Ward, 307 Kan. 245, 259-60, 408 P.3d 954 (2018) (State failed to prove 10 crimes charged, regardless of whether it may have proved another crime; conviction reversed). 

Using this test, the KSC easily concluded that reversal was required:

In this case, Fitzgerald was charged with causing [the child] "to engage in oral copulation with another person" under K.S.A. 2017 Supp. 21-5504(b)(2).

This statute "demands a specific kind of proof from the State." That proof is not the same as the entirely sufficient evidence the State marshaled and presented of Fitzgerald causing [the child] to engage in sodomy with him. See Dickson, 275 Kan. at 694-95. Under these circumstances, we are compelled to reverse Fitzgerald's conviction as unsupported by sufficient evidence of the crime the State charged. The error of insufficiency is not amenable to review for harmlessness.

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