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Two weeks ago isn't "on or about." Neither is six months ago.

Pat Dunn won in State v. Murr, No. 98,231 (Kan. App. March 4, 2009)(unpublished), reversing a Crawford County manufacture conviction and obtaining a new trial on conspiracy and possession conviction. The COA agreed that evidence of manufacture occurring weeks prior was insufficient to prove manufacture "on or about January 12, 2005" as charged:

We acknowledge that in Kansas, it is not necessary for the State to prove the exact date upon which an offense was committed. It is sufficient to prove that the offense charged was committed on or about the date alleged in the information, and within the statutory period of limitations next proceeding the commencement of the prosecution. However, we are unaware of any case that definitively held that evidence that a crime occurred 2 weeks prior to the date charged is sufficient proof that the crime occurred on or about the date charged.

Because the COA observed that the record was unequivocal that no manufacture took place on or about the date charged, it reversed the manufacture conviction.

Similarly, the COA held that the prosecutor engaged in misconduct by urging the jury to rely on evidence of conspiracy and possession that predated the charge:

We conclude that when the prosecutor told the jury it could go back as far as June 2004, it misled the jury into thinking that any events that occurred since that date were encompassed within the charging documents. . . . The comments, in essence, told the jury it could consider criminal activity that occurred outside those documents. Furthermore, the comments are not limited to just the manufacturing charge which we have held should be vacated. They were broad enough in our view to affect the jury's deliberation on the other three charges. None of these charges included activity back to either June or November of 2004.

So the COA ordered a new trial on the remaining charges.

[Update: the state did not file a PR and the mandate issued on April 9, 2009].

Full post as published by Kansas Defenders on April 10, 2009 (boomark / email).