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.]

Split verdict on identical counts impedes appellate review requiring new trial

Korey A. Kaul won in State v. Coble, No. 118,382 (Kan. January 15, 2021), reversing a count of aggravated arson and remanding for further proceedings in a Reno County prosecution. The state had charged Mr. Coble with three identical counts of aggravated arson. The jury acquitted of two counts and convicted of one. The problem in the case was there was no way to know which actual alleged incident the jury relied on to convict. Mr. Coble had been conducting chemistry experiments in his apartment, which had led to three different incidents of the fire department being called. The jury instructions for the three counts were identical except for the count number. During deliberations, the jury asked "Do the three counts apply to specific locations or events and if they do, which ones belong to which counts?" The district court merely referred the jurors back to the instructions given. 

On appeal, Mr. Coble argued that the failure to connect any count to a specific incident resulted in a hopelessly ambiguous verdict and made it impossible to conduct a sufficiency analysis. The state first argued that Mr. Coble invited any error because he had objected to the state's suggestion that the district court respond to the jury's question with a unanimity instruction. The KSC held that it did not matter because he state's proposed solution would not have cured the ambiguity problem.  The KSC also rejected the COA's rationale that the sequencing of counts in the instructions and verdict form in some way clarified which count was associated with which incident. Finally, on the merits, the KSC agreed that the resulting ambiguity interfered with Mr. Coble's right to have the appellate court review for sufficient evidence:

We hold the panel's conclusion about the jury's understanding of the sequencing of the counts in the instructions and verdict form is unsupported on this record. We cannot discern the jury's intent, as we have in other circumstances. Given this, what alternatives are left?

In a criminal case, when a defendant challenges the evidence's sufficiency to support a conviction, an appellate court examines the evidence in the light most favorable to the State to determine whether a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. We do that because our task is "to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt," not whether we "believe[ ] that the evidence . . . established guilt beyond a reasonable doubt."  

. . . .

But this is a function we cannot perform on this record. And we are sufficiently troubled by the uncertain circumstances of Coble's conviction and acquittals that we must reverse the conviction and remand the case for additional proceedings. The underlying premise of Coble's argument is that the manner in which the district court explained the charges to the jury was fatally infirm because the court cannot say with any degree of certainty which act the jury found constituted aggravated arson. And on these facts, we agree. Admittedly, the exact nature of the error defies ready classification, but we cannot tell what conduct constituted the crime of conviction among the choices facing the jury and given their acquittal on two counts.

Because the appellate record impeded effective review, the KSC held the appropriate remedy was to reverse and remand for a new trial. The KSC acknowledged that this remedy may engender its own Double Jeopardy concerns, but left that for another day.