Opinion
110,472.
05-08-2015
STATE of Kansas, Appellee, v. Thomas BURDICK, Appellant.
Meryl Carver–Allmond, of Capital Appellate Defender Office, for appellant. Bethany C. Fields, deputy county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Meryl Carver–Allmond, of Capital Appellate Defender Office, for appellant.
Bethany C. Fields, deputy county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Thomas Burdick was convicted in a jury trial of one count of violating the Kansas Offender Registration Act (KORA) for failure to register his change of residence within 3 business days as required by K.S.A.2014 Supp. 22–4905(g). Burdick appeals his conviction, raising two arguments. First, Burdick argues that the trial court erred by refusing “to give an appropriate instruction differentiating between [his] obligations under the KORA to report changes in temporary lodging versus his obligation to report changes in his permanent residence.” Second, Burdick argues that his conviction violates the Ex Post Facto Clause of the United States Constitution because KORA registration requirements are more burdensome than when he was first required to register. There is no merit in these contentions. Accordingly, we affirm.
In 2009, Burdick pled no contest to one count of distribution of cocaine in violation of K.S.A.2008 Supp. 65–4161(a). As a result of his conviction, Burdick was sentenced to 30 months' imprisonment and subject to KORA registration. Offenders subject to KORA must “register in person upon any commencement, change or termination of residence location ... within three business days of such commencement, change or termination, to the registering law enforcement agency or agencies where last registered....” K.S.A.2014 Supp. 22–4905(g).
When Burdick was released from prison in December 2012, he had an approved parole plan to reside at the Manhattan Emergency Shelter (MES). Nevertheless, in late December 2012, Burdick stopped residing at MES. On January 3, 2013, Burdick informed the Riley County Police Department that his new residence was 3591 Letter Rock Road in Riley County.
Despite giving the police this address, on January 3, 2013, Burdick rented a hotel room at America's Best Value Inn. On January 4, 2013, he renewed and stayed in the same hotel room. Burdick contends that he checked out of the hotel room on January 5, 2013, because he could not afford to stay another night. The hotel manager, however, contends that Burdick stayed in the hotel room without paying on January 5, 2013, and January 6, 2013.
When the manager of a different hotel contacted the police alleging that Burdick stayed at her hotel without paying, the police began investigating whether Burdick actually resided at the Letter Rock Road address. The police went to the Letter Rock Road address and discovered that Burdick and the son of the owner of the Letter Rock Road property were friends. Although Burdick was receiving mail at the Letter Rock Road address, the owner stated that he had not given Burdick permission to stay on his property and as far as he knew, Burdick had never stayed on his property. Burdick did not contact the police or his parole officer about a change of residence after January 3, 2013. Consequently, when Burdick returned to MES on January 11, 2013, the police arrested him for failing to update his residency registration information within 3 business days.
The State ultimately charged Burdick with one count of violation of KORA for failure to report a change of residence within 3 business days between January 9, 2013 and January 11, 2013, as provided in K.S.A.2014 Supp. 22–4905(g). The State additionally charged Burdick with one count of theft of hotel services from America's Best Value Inn on January 5, 2013, and January 6, 2013, in violation of K.S.A.2012 Supp. 21–5801(a)(1) and (b)(4).
Before his jury trial, Burdick filed several motions. The motions included a “Motion to Dismiss for Ex Post Facto Punishment by 2011 Redux of Kansas Offender Registration Act,” a motion for mental state jury instruction, and a motion not to use the KORA definition of reside. All three motions were denied.
At his jury trial, both the State and the defense presented conflicting evidence concerning Burdick's whereabouts between January 3, 2013, the date Burdick informed the police he resided at the Letter Rock Road address, and January 11, 2013, the date Burdick was arrested. After the defense rested, the trial judge, the State, and the defense attorney discussed the proposed jury instructions. The defense attorney made only one objection concerning the instruction on theft. Following this discussion, the jury returned and the trial judge read the final instructions to the jury. Then, the State and defense made closing arguments and the jury began deliberating. During jury deliberations, the jury asked the trial judge the following question: “According to [jury instruction] Number 4, are we to disregard where the defendant stayed prior to January the 9th?” Although the defense attorney mentioned that an instruction concerning temporary residency as detailed in K.S.A.2014 Supp. 22–4907(a)(6) might answer the jury's question, the trial judge, the State, and the defense attorney ultimately agreed on a different answer.
The jury found Burdick guilty of violating KORA and not guilty of theft of services. Next, the defense attorney filed a motion for acquittal and a motion for a new trial. Burdick argued that the trial court erred in not granting his proposed jury instruction concerning temporary residency. Both motions were denied.
At sentencing, the trial judge granted both a downward durational and dispositional departure to 24 months' probation.
Did the Trial Court Err by Failing to Give the Jury Instruction Concerning Temporary Residency Registration Requirements?
On appeal, Burdick argues that the trial court erred when it denied his requested “instruction on his duty under the KORA to report changes in temporary lodging.” Burdick bases this argument on K.S.A.2014 Supp. 22–4907(a)(6) which requires an offender to provide information on his “current residential address, any anticipated future residence and any temporary lodging information including, but not limited to, address, telephone number and dates of travel for any place in which the offender is staying for seven or more days” at registration. Burdick contends that the trial court erred in refusing to give his requested instruction because the instruction was a correct statement of the law. Moreover, Burdick argues that “there was evidence to support [the instruction], and [the instruction] could have affected the verdict.”
For jury instruction issues, the analytical steps with associated standards of review are as follows:
“(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in [State v. ] Ward [, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012) ].” State v. Plummer, 295 Kan. 156, 163, 283 P.3d 202 (2012).
Nevertheless, K.S.A.2014 Supp. 22–3414(3) states that a party cannot claim error regarding the trial court's “giving or failure to give an instruction ... unless the party objects thereto before the jury retires to consider its verdict stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous.” As a result, if a party does not object to the trial court's failure to give a specific jury instruction, the party cannot claim error unless that error was clearly erroneous.
In this case, Burdick's argument regarding the jury instruction fails because he never requested an instruction on temporary residency registration requirements before the jury retired. Furthermore, the trial court's failure to give that instruction was not clearly erroneous because Burdick never asked for such an instruction. For example, upon reviewing the record, it is clear that Burdick failed to request the jury instruction explaining temporary residency requirements under KORA. Before trial, Burdick made two motions concerning jury instructions, but neither of those motions dealt with the temporary residency requirements. In the first motion, Burdick moved to include a jury instruction highlighting how unfair KORA is because one can violate KORA without a culpable mental state. In the second motion, Burdick requested that the trial court not include an instruction on the term “reside” as defined in K.S.A.2014 Supp. 22–4902 because it improperly shifts the burden from the State. The trial court denied both motions.
During trial but before the jury began to deliberate, the trial court held an on-the-record discussion outside the presence of the jury concerning the jury instructions. The trial judge went through each of the jury instructions, asking if either the State or defense had any objections. Burdick only had one objection during this conference. He objected to the language “exerted unauthorized control over services” in the theft instruction. Burdick additionally requested an instruction on the role of the jury and again requested an instruction on the unfairness of KORA concerning the lack of culpable mental state. Both requests were denied. At the end of the conference, the trial judge asked the defense if it was ready to proceed and the defense attorney stated he had no further issues and was ready to proceed. Immediately after the jury instructions conference, the trial judge read the final jury instructions to the jury, closing arguments were made, and the jury began to deliberate. As a result, Burdick failed to request an instruction on temporary residency requirements before the jury began to deliberate.
Nevertheless, Burdick asserts in his brief that an off-the-record conversation about the temporary residency jury instruction occurred before the formal jury instructions conference. Burdick bases this assertion on statements he made during an on-the-record discussion about answering the jury's question. During this discussion, Burdick stated that he had previously requested the jury instruction explaining temporary residency requirements as stated in K.S.A.2014 Supp. 22–4907(a)(6) in an off-the-record conversation. First, it is important to note that despite Burdick's assertion, neither the trial court nor the State agreed or admitted that such a conversation had ever occurred off-the-record. Thus, outside of his own assertions, nothing in the record supports that this off-the-record conversation occurred. More importantly, however, Burdick's argument ignores that whether he had an off-the-record discussion about this jury instruction before the jury began deliberating is irrelevant because he failed to comply with the requirements of K.S.A.2014 Supp. 22–3414(3).
K.S.A.2014 Supp. 22–3414(3) clearly states the proper procedure regarding requesting jury instructions. First, a “party may file written requests that the court instruct the jury on the law as set forth in the requests.” K.S.A.2014 Supp. 22–3414(3). Then, K.S.A.2014 Supp. 22–3414(3) requires that the trial court rule on all proposed jury instructions and objections and the court reporter “record all objections to the instructions given or refused by the court, together with modifications made, and the rulings of the court.” Since requests for jury instructions should be filed as written requests and a court reporter must record all objections and rulings of the court, it is evident that K.S.A.2014 Supp. 22–3414(3) requires that a party make a request for a jury instruction on the record. This conclusion is further supported by the fact K.S.A.2014 Supp. 22–3414(3) requires that “[a]ll instructions given or requested must be filed as a part of the record in the case.” Thus, whether Burdick made an off-the-record request for a temporary residency jury instruction is of no effect. This is because K.S.A.2014 Supp. 22–3414(3) requires not only that a request be made before the jury begins deliberations but also that the request be made on the record.
Furthermore, it is worth noting that after the defense attorney suggested that an instruction on temporary residency may answer the jury's question about how to apply jury instruction Number 4 to certain evidence, the defense attorney, the State, and the trial judge all agreed on an alternative answer. When the trial judge asked the defense attorney if he had any objections to the answer, the attorney stated that he did not. As a result, Burdick never objected to the exclusion of a jury instruction on temporary residency on the record during the course of the trial.
Because Burdick failed to request the jury instruction on the record before the jury retired to consider the verdict, under K.S.A.2014 Supp. 22–3414(3), he must demonstrate that the trial court's failure to give the instruction was clearly erroneous. This court uses a two-step process in determining whether the failure to give an instruction was clearly erroneous: (1) the court must determine whether there was error at all, which “requires demonstrating that giving the instruction would have been legally and factually appropriate based on an unlimited review of the entire record;” and, (2) “[i]f the court finds error, it moves to an inquiry of whether reversal is warranted based on an assessment of whether it is firmly convinced that the jury would have reached a different verdict if the instruction had been given.” State v. Cameron, 300 Kan. 384, 389, 329 P.3d 1158 (2014).
Burdick cannot establish that the trial court's failure to give the temporary residency jury instruction was clear error. In some past cases, this court has found that a party's failure to request an instruction prevented a finding of clear error based on the trial court's failure to include the instruction. For instance, in State v. Dumars, 33 Kan.App.2d 735, 751, 108 P.3d 448, rev. denied 280 Kan. 986 (2005), this court determined that the failure of the defense to request a “custom instruction preclude[d] any conclusion that there was clear error.” Moreover, in State v. Antwine, 4 Kan.App.2d 389, 395, 607 P.2d 519 (1980), this court found that “it was not error for the court to fail to give a cautionary instruction to the jury when no such instruction was requested by counsel.”
Nevertheless, our Supreme Court in State v. Pabst, 273 Kan. 658, 660, 44 P.3d 1230 (2002), stated the following: “ ‘It is well established that this court reviews a trial court's failure to give an instruction by a clearly erroneous standard where the party neither requested the instruction nor objected to its omission.’ “ Even under this more lenient standard than DuMars and Antwine, Burdick is unable to show that the trial court's failure to give the temporary residency jury instruction was clear error. First, even on appeal, Burdick has not provided the proposed jury instruction that he claims should have been given. Second, the violation of the temporary residency requirements is found under K.S .A.2014 Supp. 22–4907(a)(6). Nevertheless, Burdick was not charged with violating the temporary residency requirements. Instead, Burdick was charged with violating KORA under K.S.A.2014 Supp. 22–4905(g). Instruction number 4, which is contained in the record, properly and fairly stated the elements for this charge. “Error cannot be predicated on the refusal to give an instruction when its substance is adequately covered in other instructions.” Black v. Don Schmid Motor, Inc., 232 Kan. 458, 474, 657 P.2d 517 (1983).
Thus, on this record, Burdick has not shown any clear error in the trial court's jury instructions.
Is Burdick's Conviction Invalid Because It Violates the Ex Post Facto Clause of the United States Constitution?
Next, Burdick argues that the 2011 amendments to KORA have made the law penal in nature. Thus, Burdick contends that the 2011 amendments violate the Ex Post Facto Clause of the United States Constitution. Burdick specifically asserts that his conviction is invalid because when he was first required to register as an offender he had 10 days, not 3 days, to inform the police about a change in residence. Based on precedent, however, Burdick's argument fails.
Whether a statute is constitutional is a question of law over which appellate courts have unlimited review. State v. Simmons, 50 Kan.App.2d 448, 453, 329 P.3d 523 (2014). Moreover, under our ordinary rules of statutory construction,
“ “ “[t]he constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it is the court's duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond reasonable doubt. [Citations omitted.]” “ “ State v. Carr, 300 Kan. 1, 285, 331 P.3d 544 (2014) (quoting State v. Brown, 280 Kan. 898, 899, 127 P.3d 257 [2006] ).
A statute violates the Ex Post Facto Clause when it punishes an act as a crime that was not a punishable act when committed or “makes more burdensome the punishment for a crime after its commission.” State v. Myers, 260 Kan. 669, Syl. ¶ 5, 923 P.2d 1024 (1996), cert. denied 521 U.S. 1118 (1997). Nevertheless, the prohibition against ex post facto laws only applies to laws which are punitive. Myers, 260 Kan. at 677.
In Myers, after an extensive review of the Kansas Sex Offender Registration Act (KSORA), our Supreme Court held that the legislature created KSORA for a nonpunitive public safety purpose. 260 Kan. at 681. The Myers court ultimately held that the registration requirements under KSORA were remedial and thus constitutional. 260 Kan. at 671. Moreover, in Smith v. Doe, 538 U.S. 84, 105–106, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), the United States Supreme Court determined that Alaska's sex offender registration act was nonpunitive and did not violate the Ex Post Facto Clause.
Burdick acknowledges the Myers and Smith decisions but maintains that since the 2011 amendments to KORA this court can no longer ignore that registration is a punishment. To support this argument, Burdick challenges several of the 2011 amendments to KORA and discusses how registration is a punishment under the Kennedy v.. Mendoza–Martinez, 372 U.S. 144, 168–169, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963), factors. In his brief, Burdick specifically takes issue with the 2011 KORA amendments that have increased the penalty for failure to register; created a registration fee; expanded the definition of offenders who must register; heightened reporting requirements, including increased frequency of registration, length of registration, and notification of residency changes and traveling plans; and increased the information subject to public disclosure.
Yet, this court has consistently rejected Burdick's arguments. In State v. Byers, Nos. 108,564, 2013 WL 3867862, at *6 (Kan.App.2013) (unpublished opinion), and State v. Watkins, No. 110,702, 2014 WL 4231269, at *4 (Kan.App.2014) (unpublished opinion), this court rejected that the increased punishment for failure to register was penal because punishment for failure to register was a collateral consequence of KORA necessary for KORA to work. This court has also rejected the argument that payment of a registration fee is penal because the fee is not a punishment but a way to reimburse the sheriff's office. See State v. Hall, No. 106,903 2013 WL 646482, at *4 (2013) (unpublished opinion), rev. denied 297 Kan. 1250 (2013) (citing State v. Weis, 47 Kan.App.2d 703, 719, 280 P.3d 805 [2012] ).
Burdick's remaining arguments were addressed in the recent case State v. Simmons. Simmons argued that the application of the 2007 amendments of KORA to people who had been convicted of drug crimes before those amendments violated the Ex Post Facto Clause of the United States Constitution. Like Burdick, Simmons alleged that “the expanded scope of the offenders who are required to register, the heightened reporting obligations, and the more aggressive public notification provisions implemented since the court in Myers considered the constitutionality of KSORA in 1996” required a finding that the new amendments were penal in nature and in violation of the Ex Post Facto Clause. Simmons, 50 Kan.App.2d at 464. In rejecting Simmons' argument, this court stated:
“Although the changes Simmons points out between KSORA as it was upheld in Myers and the KORA version applied to her are significant, ultimately they are matters of degree rather than differences of kind. Thus, absent some indication the Kansas Supreme Court intends to retreat from its decision in Myers, it remains controlling authority. Likewise, many of the registration features challenged by Simmons were included in the Alaska sex offender registration act upheld by the United States Supreme Court in Smith. [Citation omitted.]” 50 Kan.App.2d at 464–65.
Consequently, this court has previously addressed and rejected all of Burdick's arguments concerning the invalidity of his conviction based on an Ex Post Facto Clause violation. Moreover, as stated in Simmons, Myers remains controlling authority and this court is bound to follow our Supreme Court precedent absent an indication that it is departing from its position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). For these reasons, Burdick's conviction for failure to comply with KORA registration is valid and does not violate the Ex Post Facto Clause.
Affirmed.