State v. Fitzgerald, 423 P.3d 497

Background

C.C., a child under 14, accused Loarn Fitzgerald of repeated oral sodomy and related sexual acts while she lived in his house. She provided detailed descriptions and a recorded police interview.
State charged Fitzgerald under K.S.A. 2017 Supp. 21-5504(b)(2): "causing a child under 14 years of age to engage in sodomy with any person."
Trial proceeded (opening, testimony, instructions, and argument) as if the charge were sodomy by the defendant with the child (the statutory subsection for the defendant committing sodomy with the child). Jury instructions tracked the subsection for the defendant engaging in sodomy with the child, not the "causing... with any person" subsection charged.
The jury convicted Fitzgerald of aggravated criminal sodomy and he received a life sentence.
On appeal the Court of Appeals reversed for insufficiency under State v. Dickson reasoning; the State sought Supreme Court review. The Kansas Supreme Court affirmed the Court of Appeals and reversed the conviction for insufficient evidence of the crime charged.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the State proved the specific crime charged under K.S.A. 21-5504(b)(2) (causing a child to engage in sodomy "with any person")	State: charging and proof were adequate; trial proceeded without objection and jury was instructed on a valid statutory means supported by evidence	Fitzgerald: State charged (b)(2) but proved only that he personally committed sodomy with the child (the (b)(1) theory); conviction unsupported for the charged means	Court: Reversed — conviction unsupported because the State proved a different statutory theory than the one charged (sufficiency error)
Whether Dickson should be overruled (interpretation of "any person")	State: urged Dickson is wrong and should be overruled so "any person" may include the defendant	Fitzgerald: relied on Dickson that "any person" excludes the defendant; thus charged statutory elements differ from proof	Court: Declined to overrule Dickson and applied it; left statutory-interpretation question intact
Whether charging-document error was harmless or waived	State: any charging or citation defects were harmless or not preserved; K.S.A. 22-3201(b) should apply	Fitzgerald: framed issue as insufficiency of proof of the charged offense (not mere charging-document defect)	Court: Treated as insufficiency of proof of the charged statutory means; sufficiency error cannot be harmless; reversal required
Whether the jury instruction/variance issues were raised or would cure the defect	State: did not press instruction-error or variance arguments	Fitzgerald: focused on insufficiency of evidence for the charged subsection	Court: Noted State did not argue instruction error/constructive amendment/variance; declined to reach those arguments here

Key Cases Cited

State v. Laborde, 303 Kan. 1 (reversal required where trial proceeded on a different crime/theory than charged)
State v. Dunn, 304 Kan. 773 (framework for types of charging-document insufficiency)
State v. Dickson, 275 Kan. 683 (interpreting "any person" in sodomy statute to exclude the defendant)
State v. Brown, 295 Kan. 181 (alternative means in sex-offense statutes can create distinct material elements)
State v. Wright, 290 Kan. 194 (sufficiency-error review and limits on harmless-error analysis)
State v. Lloyd, 299 Kan. 620 (standard for appellate review of sufficiency of the evidence)