Opinion
No. 108,551.
2013-08-2
STATE of Kansas, Appellee, v. Harlan BAILEY, Jr., Appellant.
Appeal from Reno District Court; Timothy J. Chambers, Judge. Janine Cox, of Kansas Appellate Defender Office, for appellant. Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Timothy J. Chambers, Judge.
Janine Cox, of Kansas Appellate Defender Office, for appellant. Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., McANANY and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Harlan Bailey, Jr., challenges the sufficiency of the evidence to support his conviction after a bench trial of failing to register as a sex offender, as required under provisions of the Kansas Offender Registration Act (KORA), K.S.A.2011 Supp. 22–4901 et seq. Specifically, Bailey challenges the sufficiency of the evidence of his general intent to commit the crime. Because our legislature now defines a violation of the KORA as a strict liability offense, the State was not required to prove Bailey had a culpable mental state in order for the court to find him guilty. Accordingly, we affirm.
Factual and Procedural History
We begin by discussing several key facts underlying Bailey's conviction that are not in dispute. First, it is undisputed for our purposes that Bailey's conviction of criminal sodomy triggered a requirement that he register as a sex offender four times a year. See K.S.A.2011 Supp. 22–4905(b)(1). Second, it is undisputed that Bailey was required to register during the month of August 2011 because that is his birthday month. See K.S.A.2011 Supp. 22–4905(b). Third, it is undisputed that Bailey failed to register in person with the Reno County Sheriff's Office in August 2011. That failure is what led the State to charge Bailey with a single count of failure to register in violation of K.S.A.2011 Supp. 22–4903(a).
Highly summarized, Bailey's defense during his bench trial was that he did not intentionally fail to register in August. Rather, he believed that when he registered while in jail on July 22, 2011, that also satisfied his registration requirement for August.
The district court found Bailey guilty as charged. The court, nonetheless voiced its displeasure with the policy of strictly enforcing the KORA's registration requirements, particularly when, as here, the offender shows no “nefarious intent” or “willful[ness]” in failing to register and law enforcement obviously knows the offender's whereabouts. But the court acknowledged, “That's not a decision for the court.” After the court sentenced Bailey to a standard presumptive sentence of 41 months in prison, Bailey filed this appeal.
As an aside, we note that the record reveals the district court also revoked Bailey's probation in another case simultaneous with Bailey's sentencing in this case. That probation revocation, however, is not currently before us.
Analysis
In his sole issue on appeal, Bailey argues the evidence was insufficient to establish his general intent to violate the KORA, so he asks this court to reverse his conviction. The State generally responds that it presented sufficient evidence to support Bailey's conviction.
We need not even reach Bailey's sufficiency argument, however, because it is based on the faulty premise that the crime of failure to register is not a strict liability crime. Indeed, that used to be the case, given our legislature's narrow definition of strict liability offenses. See In re C.P.W., 289 Kan. 448, 453–56, 213 P.3d 413 (2009) (holding failure to comply with KORA's reporting requirements as criminalized by K.S.A. 22–4903[a] did not meet strict liability criteria of K.S.A. 21–3204 and ultimately concluding that prosecution need only prove offender's general intent). But the parties and the district court apparently did not realize that this had all changed with our legislature's revision of the criminal code.
As part of the revised criminal code, our legislature expanded the list of crimes defined as strict liability crimes in K.S.A. 21–3204 (now K.S.A.2012 Supp. 21–5203) to include KORA violations. See L.2010, ch. 136, sec. 14. This means that, as of July 1, 2011—the month before Bailey's failure to register at issue in this case—a violation of the KORA is a crime for which our legislature states, “A person may be guilty ... without having a culpable mental state.” K.S.A.2011 Supp. 21–5203(e). Because Bailey could be found guilty of a violation of the KORA without having a culpable mental state, we need not consider the sufficiency of the evidence to prove any such intent. And that is the only issue Bailey raises here.
Affirmed.