Sedgwick County District Attorney Marc Bennett said he’ll ask the state Supreme Court to review a decision that could free a man serving a life sentence for molesting a 4-year-old.
The state Court of Appeals has reversed the conviction and sentence of Qwentin Deion Lacy, 26, ruling that he was charged with the wrong crime and the error was not caught by the trial judge.
“This case is an example of what can happen when a prosecutor makes a mistake— one apparently made through carelessness, not ill will,” the appellate ruling said last week. “The result is that we must set aside a man’s conviction for aggravated indecent liberties against a child.
“And because the mistake wasn’t noticed until after the defendant had already been tried and convicted, the State does not get a do-over: There will be no second trial at which the mistake could be corrected. “
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Lacy is serving a sentence of life without possibility of parole for 25 years.
In a 2015 trial, prosecutors presented evidence that Lacy illegally touched the 4-year-old victim. The problem is, he was charged with soliciting illegal sexual activity, not actually touching the girl himself.
The victim “told the nurse that (Lacy) put her in some positions, took off her clothes, and touched her,” the appeals court ruling said. “With two ways to commit the offense — touching or soliciting — it’s immediately apparent that the underlying facts . . . would be a touching offense, not soliciting.”
The court ruling was also critical of the judges involved for not catching the error.
“The prosecutor wasn’t the only one in a position to catch this error,” the ruling said. “While the defense counsel certainly has no duty to point out errors the prosecution might make, the district court should have noted this problem when the State presented evidence at the preliminary hearing. That evidence didn’t match the charge the State had made.”
Court records show six different judges were involved in the case during the year and a half it took to go through the local court system.
Bennett said he’s “not entirely sure” why the charge wasn’t changed from soliciting to touching when the evidence pointed that way.
“I guess the simple answer is it didn’t occur to the prosecutor, the defense attorney or the judge that it needed to be, at the time in the moment,” he said. “But at the end of the day, it’s not the defense attorney’s job, it’s not the judge’s job, it’s ours.”
Lacy’s lawyer, Rick Kittell of the Kansas Appellate Defender Office, said he thought the appeals court decision is correct under the law.
“They did a good job explaining why they did what they did,” he said.
Lacy has been in jail or prison since his arrest in December 2015. He’ll stay in custody until the Supreme Court rules on the motion to review the appeals court decision, Bennett said.