Opinion
No. 108,615.
2013-11-8
STATE of Kansas, Appellee, v. James M. EDEN, Appellant.
Appeal from Shawnee District Court; Mark S. Braun, Judge. Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Jason Geier, Jodi Litfin, and Jose V. Guerra, assistant district attorneys, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Mark S. Braun, Judge.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Jason Geier, Jodi Litfin, and Jose V. Guerra, assistant district attorneys, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON and HILL, JJ.
MEMORANDUM OPINION
PIERRON, J.
James M. Eden appeals his conviction and sentence for a violation of the Kansas Offender Registration Act (KORA). Eden argues there was insufficient evidence of a KORA violation; the district court erred by refusing to instruct the jury on general criminal intent and by using his prior convictions to enhance his sentence; and his current conviction violates his due process rights under the Sixth Amendment to the United States Constitution.
The State charged Eden with a KORA violation. A jury trial was held at which Topeka Police Detective Brian Wheeles and Eden testified. The parties stipulated that Eden was previously convicted of a crime that requires registration under KORA. During opening arguments, the State proclaimed, “This case is not a case about whether [Eden] wanted to register, it's not a case about whether he intended to register, this case is about whether did he register in November of 2010 as required by law, or did he not register in November 2010 as required by law?” Defense counsel countered that Eden “believed he was complying with the [KORA] registration requirements,” and “[t]he only issue here is whether [he] intentionally failed to register in the month of November.”
In mid–2009, there were roughly 800 registered offenders in Shawnee County and there was only one deputy handling registrations and investigations. So the Topeka Police Department and the Shawnee County Sheriffs Office entered into a collaborative agreement which provided that one investigator from the police department would be assigned to help with the criminal investigations of registered offender violations. Detective Wheeles was that investigator in November and December 2010. In November 2010, because of the high number of registered offenders, an offender was required to call the sheriff's office for an appointment before reporting in person to register. The sheriff's office claimed it was “very proactive in attempting to contact ... offenders” and scheduled offenders' appointments for the appropriate dates.
Eden was born on November 18. Eden testified about his responsibilities under the KORA. He has been required to register in his birth month since 2007 and must do so for the rest of his life. There was no specific time period, he just had to report to the sheriff's office in person before the end of November. He used to be able to report to the sheriff's office at any time, but now his home county of Shawnee requires an appointment. Deputy Emily Adams usually gave him an appointment and registered him. The registration process lasts 15 to 20 minutes and consists of filling out paperwork and having his picture taken.
Eden testified that in mid-November 2010, he called the sheriff's office for an appointment, but no one answered so he left a voicemail message. Eden recalled, “I'm thinking it was in the middle of the month, because I usually try not to wait too late. Whatever's going on, I make sure that I try to get there or get it scheduled before the end of the month.” No one returned his call—which had never happened before—so he called back a few days, maybe a week, later, and Deputy Adams gave him a December 8, 2010, appointment. Eden did not register in November 2010. On December 8, 2010, Eden arrived at the sheriffs office 10 minutes late for his appointment because he had “had some errands to run.” Eden was not allowed to register because another person had an appointment, and he was told to schedule another appointment. Eden's appointment was rescheduled for December 16, 2010.
On December 2, 2010, the sheriff's office notified Detective Wheeles that Eden had missed his mandatory birth month registration in November 2010. Detective Wheeles explained:
“They actually extended and gave [Eden] an appointment for December 8th of 2010, but by law, December 1st of 2010, as soon as November expired, he would have been in violation. They did schedule an appointment for him on December 8th of 2010 to try to give him an extenuating circumstances break, but then he failed to show up for that.”
On December 15, 2010, Detective Wheeles called Eden and left a message. Detective Wheeles' call was not returned so he responded to Eden's residence. When Eden answered the door, Detective Wheeles arrested him and transported him to the law enforcement center for an interview.
Detective Wheeles interviewed Eden that day. After being read his Miranda rights, Eden agreed to talk to Detective Wheeles. First, Eden explained he called for an appointment, he arrived at the appointment a little bit late, and the sheriff's office rescheduled the appointment for December 16, 2010. Eden clarified he left Deputy Adams a voicemail message that he “wasn't going to have” the $20 registration fee because of the holidays, but she never called him back so “that's why [he] was late.” Then Eden explained that when he called Deputy Adams back, she scheduled him an appointment for December 8, 2010, told him he was “late,” and “gave [him] a warning ... that [he] could be in trouble because it wasn't exactly [his] birthday.” When he arrived for his appointment, the sheriff's office told him, “Well you're late, there's other people ahead, and we've got to leave [ ] by 3.” Detective Wheeles stated he was under the impression that Eden failed to report on December 8, 2010, at 2:45 p.m., had not contacted the sheriffs office since then, and did not have another appointment scheduled. Detective Wheeles also noted this was not the first time Eden had missed a mandatory registration month.
Detective Wheeles testified Eden said in the interview that he called in November 2010 and left a voicemail explaining “he hadn't come in” because “he didn't have the $20 registration fee.” Detective Wheeles also testified he did not know whether Eden had in fact called the Sheriff's Office in November 2010; whether Eden had in fact reported in person on December 8, 2010; or whether Eden had in fact had a December 16, 2010, appointment. Detective Wheeles further testified Eden had failed to comply with his registration requirement in 2008 and 2009. Finally, Eden testified he is not given any documentation when he schedules a registration appointment, and neither he nor the Sheriff's Office had a record of the phone calls he made in November 2010.
Deputy Adams further testified about her unit's policies and procedures. She registers offenders every 15 minutes. An offender who is late to an appointment will not be able to register that day because there is not “enough time to put somebody in at someone else's time.” The unit does not keep track of whether an offender arrives late to an appointment. Offenders who arrive late and whose appointments cannot not be rescheduled for the same day could be deemed in violation the next day. Offenders who do not have the $20 fee can register, and if they pay within 10 or 14 days of their registration month, then they will not be deemed in violation. Deputy Adams acknowledged that Eden had completed his 2009 birth month registration in December 2009. Because she “assume[d]” Eden “had called ... during November [20010] and for some reason wasn't able to come in,” she had to admit Eden could have called during November 2010 and had to reschedule for December 8, 2010. Deputy Adams closed with this testimony, “If [Eden] had called during November [2010] and we put him on the calendar for the 8th, he wouldn't have been sent to the police department on the noncompliant list.”
Eden proposed PIK Crim.3d 54.01–A to the district court, which instructs: “In order for the defendant to be guilty of the crime charged, the State must prove that his conduct was intentional. Intentional means willful and purposeful and not accidental. Intent or lack of intent is to be determined or inferred from all of the evidence in the case.” The State objected to the instruction and the district court ultimately refused to give it. The court did give the following instructions, which were requested by both parties:
“Ordinarily, a person intends all of the usual consequences of his voluntary acts. This inference may be considered by you along with all the other evidence in this case. You may accept or reject it in determining whether the State has met its burden to prove the required criminal intent of the defendant. This burden never shifts to the defendant. [See PIK Crim.3d 54.01.]”
“The defendant is charged with the crime of failure to register as an offender. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant had previously been convicted of a crime that requires registration under the Kansas Offender Registration Act;
“2. That the defendant failed to report in person during the month of his birthday to the Shawnee County Sheriffs Office;
“3. That this act occurred on or about the 1st day of December, 2010, in Shawnee County, Kansas. [See PIK Crim.3d 64.19.]”
During closing arguments, the State simply argued that all three elements of the crime had been met, through stipulation and Eden's own testimony, and the case was about whether Eden registered in November 2010—not whether he wanted or intended to register in that month.
Defense counsel followed with this argument:
“The only element in dispute today is whether Mr. Eden failed to register in the month of November at the Shawnee County sheriffs office.... I'd ask you to turn your attention to instruction number eight [PIK Crim.3d 54.01.] It says....
“ The failure to appear and report in person at the Shawnee County sheriff's office was not an intentional act by Mr. Eden. ... The Shawnee county sheriff's office had the duty and the discretion to not only make the appointment, but they hold the key to when a person comes in and registers. Mr. Eden didn't voluntarily ... not appear. He tried, he attempted to....
....
“... There's no documentation, but the only person ... that could have verified [Eden's appointment call] isn't here, Miss Adams.
“... [T]here's no issue as to whether Mr. Eden is required to register or whether this act occurred December 1st, 2010, in Shawnee County, Kansas. The only element at issue here is whether he intended to fail to register in November. He didn't. He tried. (Emphasis added.)”
In rebuttal, the State pointed out that the elements instruction neither contained the word “intent” nor suggested a voicemail message was a sufficient substitute for in-person registration.
The jury found Eden guilty. Granting Eden's motion for dispositional departure, the district court sentenced him to 36 months' probation, with an underlying sentence of 120 months' imprisonment. Eden timely appeals his conviction and sentence.
Eden first argues the State failed to present sufficient evidence that he intentionally failed to register in November 2010. The State counters that because there was evidence Eden intended to register in December 2010, it follows there was evidence he intended not to register in November 2010.
A person who is required to register under the KORA “shall report in person three times each year to the sheriff's office in the county in which the person resides or is otherwise located.” K .S.A.2010 Supp. 22–4904(c). The person must “report once during the month of the person's birthday and every four months thereafter,” and “[t]he sheriff's office may determine the appropriate times and days for reporting by the person.” K.S.A.2010 Supp. 22–4904(c). The failure to comply with the reporting requirements is criminalized by K.S.A. 22–4903(a), which states in relevant part: “Any person who is required to register as provided in the Kansas offender registration act who violates any of the provisions of such act, including all duties set out in K.S.A. 22–4904 through 22–4907, and amendments thereto, is guilty of a severity level 5, person felony.”
In In re C.P.W., 289 Kan. 448, 455–56, 213 P.3d 413 (2009), the Kansas Supreme Court held that to prove a KORA violation, the State must show the defendant acted with general intent in failing to meet the registration requirements. First, the court cited former K.S.A. 21–3201(a), which stated: “Except as otherwise provided, a criminal intent is an essential element of every crime defined by this code. Criminal intent may be established by proof that the conduct of the accused person was intentional or reckless.” See 289 Kan. at 453 (noting State's concession that KORA violations do not involve reckless conduct). The court then cited former K.S.A 21–3201(b), which defined intentional conduct as “conduct that is purposeful and willful and not accidental.” And the court finished with this summary of general intent:
“Simply stated, general criminal intent under K.S.A. 21–3201 is the intent to do what the law prohibits. To prove general intent, it is not necessary for the State to prove that the defendant intended the precise harm or the result that occurred. [Citation omitted.] Further, the State ‘is not obligated to prove an intent to violate a particular statute but rather the intent to do the criminal act which violated the statute.’ [Citation omitted.] In other words, ‘all that is required is proof that the person acted intentionally in the sense that he was aware of what he was doing.’ [Citation omitted.]” 289 Kan. at 454.
See State v. Spicer, 30 Kan.App.2d 317, 324, 42 P.3d 742,rev. denied 274 Kan. 1117 (2002) (“General intent is a state of mind in which a person is conscious of the act he or she is committing without necessarily understanding the consequences of that action.”).
As part of the revised criminal code, the Kansas Legislature expanded the list of 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(d). Therefore, as of July 1, 2011—more than 6 months after Eden's alleged failure to report—a violation of the KORA is a crime for which “[a] person may be guilty ... without having a culpable mental state.” See K.S.A.2012 Supp. 21–5203(f). But In re C.P.W. was controlling law at the time Eden committed his alleged crime.
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Stafford, 296 Kan. 25, 53, 290 P.3d 562 (2012).
When making a sufficiency of the evidence determination, an appellate court does not reweigh evidence, resolve evidentiary conflicts, or make determinations regarding witness credibility. 296 Kan. at 53. If there is evidence to support a finding that each of the elements of a crime has been met, an appellate court should uphold a defendant's convictions even when the evidence was entirely circumstantial. State v. Richardson, 289 Kan. 118, 127, 209 P.3d 696 (2009); see State v. Ward, 292 Kan. 541, 581, 256 P.3d 801 (2011) (“circumstantial evidence is evidence of events or circumstances from which reasonable factfinder may infer existence of material fact in issue”), cert denied132 S.Ct. 1594 (2012).
Here, Eden was charged with violating K.S.A.2010 Supp. 21–4904(c). The jury was appropriately instructed that the State was required to prove beyond a reasonable doubt that (1) Eden was required to register under the KORA; (2) he failed to report in person during November; and (3) his act occurred on or about December 1, 2010. See PIK Crim.3d 64.19. Elements one and three are undisputed: Eden was required to register and he had not done so as of December 1, 2010. The question we must resolve is whether the State met its burden under In re C.P.W. to prove that Eden acted with general intent in failing to report in person during November 2010.
When viewed in the light most favorable to the prosecution, the video of Eden's interview contains circumstantial evidence that he intentionally failed to report in November 2010. One, Eden told Detective Wheeles he had left a voicemail message that he was not going to have the registration fee. Based on this statement, a reasonable factfinder could infer that Eden called, not to get an appointment, but to inform Deputy Adams that he would not be registering due to lack of funds (which would explain why his call was not returned). Two, Eden neglected to tell Detective Wheeles the month in which he made his phone calls. But Eden did tell Detective Wheeles that when he called back, Deputy Adams informed him he was late and could be in trouble because it was not his birthday. Based on this statement, a reasonable factfinder could infer that Eden called back in December (which would explain why Deputy Adams scheduled him a December appointment).
These two pieces of circumstantial evidence constitute sufficient evidence that Eden “willfully,” “purposefully,” or “consciously” failed to report in person during November 2010. See State v. LeClair, 43 Kan.App.2d 606, 611–12, 228 P.3d 1103 (2010) (sufficient evidence of general intent where defendant intentionally deferred reporting his address change until he was settled), rev. denied on other grounds295 Kan. 909 287 P.3d 875 (2012); State v. Escalante, No. 107,967, 2013 WL 3455790, at *1–3 (Kan.App.2013) (unpublished opinion) (sufficient evidence of general intent where defendant, who had been told by his probation officer that he was required to register, “consciously failed to register”).
There was sufficient evidence to support Eden's KORA-violation conviction.
Next, Eden argues the district court committed reversible error by refusing to instruct the jury on general criminal intent because his intent was substantially at issue. The State disagrees.
The Kansas Supreme Court recently clarified the analytical progression and standard of review for each step when considering on appeal whether a jury instruction should have been given:
“(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, [565,] 256 P.3d 801 (2011), cert. denied182 L.Ed.2d 205, 132 S.Ct. 1594, ––– U.S. –––– (2012).” State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).
Eden requested PIK Crim.3d 54.01–A, the general criminal intent instruction, and argued for it at the jury instruction conference. Therefore, Eden properly preserved the issue as to whether the instruction should have been given. See State v. Qualls, 297 Kan. 61, 68–69, 298 P.3d 311 (2013) (2013) (issue preserved where defendant requested instruction, instruction was discussed at jury instruction conference, but instruction was not given).
PIK Crim.3d 54.01–A reads: “In order for the defendant to be guilty of the crime charged, the State must prove that his conduct was intentional. Intentional means willful and purposeful and not accidental. Intent or lack of intent is to be determined or inferred from all of the evidence in the case.” “ ‘This instruction should be used only where the crime requires only a general criminal intent and the state of mind of the defendant is a substantial issue in the case.’ “ State v. Ellmaker, 289 Kan. 1132, 1141, 221 P.3d 1105 (2009) (quoting PIK Crim.3d 54.01–A, Notes on Use), cert. denied130 S.Ct. 3410 (2010). To secure a conviction, the State had to show that Eden acted with general intent in failing to report in person. See In re C.P.W., 289 Kan. at 455–56. And Eden's state of mind was a substantial issue because his theory of defense was that he intended to report in November 2010 but the sheriff's office prevented him from doing so. Therefore, the general criminal intent instruction was legally appropriate.
Eden was entitled to instructions on the law applicable to his defense theory if the evidence, when viewed in the light most favorable to him, was sufficient to justify a rational factfinder finding in accordance with that theory. This is true even if Eden's defense theory was only supported by his own testimony. See Qualls, 297 Kan. at 71. There was evidence the Shawnee County Sheriffs Office schedules registration appointments, which offenders must have before they report in person. Eden testified he called the sheriff's office twice in November 2010 to get a registration appointment and was eventually given a December 2010 appointment. Detective Wheeles testified he did not know whether Eden called in November 2010. Therefore, the evidence, when viewed in the light most favorable to Eden, was sufficient to submit the general criminal intent instruction to the jury and allow it to decide if Eden intentionally—willfully and purposefully and not accidentally—failed to report in person during November 2010.
Finally, the Kansas Supreme Court has established the following test for harmlessness:
“ ‘[B]efore a Kansas court can declare an error harmless it must determine the error did not affect a party's substantial rights, meaning it will not or did not affect the trial's outcome. The degree of certainty by which the court must be persuaded that the error did not affect the outcome of the trial will vary depending on whether the error implicates a right guaranteed by the United States Constitution. If it does, a Kansas court must be persuaded beyond a reasonable doubt that there was no impact on the trial's outcome, i.e., there is no reasonable possibility that the error contributed to the verdict. If a right guaranteed by the United States Constitution is not implicated, a Kansas court must be persuaded that there is no reasonable probability that the error will or did affect the outcome of the trial.’ “ Qualls, 297 Kan. at 71 (quoting Ward, 292 Kan. at 565).
A defendant has a constitutional right to present his or her theory of defense. State v. Simmons, 295 Kan. 171, 176, 283 P.3d 212 (2012). Moreover, a defendant's constitutional right to a fair trial may be violated if a requested instruction on the law applicable to his or her defense theory is not given. State v. Wade, 45 Kan.App.2d 128, 135, 245 P.3d 1083 (2010) (quoting State v. McIver, 257 Kan. 420, Syl. ¶ 1, 902 P.2d 982 [1995] ),rev. denied 292 Kan. 968 (2011). Therefore, we must be persuaded beyond a reasonable doubt that there is no reasonable possibility that the instruction error contributed to the guilty verdict.
Considering the jury instructions as a whole, the evidence, and the arguments of counsel, there is a reasonable possibility that the absence of the general criminal intent jury instruction contributed to Eden's conviction. The Notes on Use for PIK Crim.3d 54.01–A state: (1) “The PIK instruction defining the crime should cover ... general criminal intent as an element of the crime”; (2) PIK Crim.3d 54.01–A “must not be confused with PIK Crim.3d 54.01, Presumption of Intent, which is a rule of evidence and does not purport to charge the jury to find criminal intent necessary for conviction”; and (3) the Comment to PIK Crim.3d 54.01–A states: “Failure to give [the defendant's requested instruction] is not error where the substance of the requested instruction is present in other instructions given by the district court;”
Here, the district court gave a KORA violation instruction that conformed to PIK Crim.3d 64.19 (“the defendant failed to [insert KORA provision violated]”), as well as the presumption of intent instruction. The district court never instructed the jury that the State had to prove Eden intentionally failed to report in November 2010. Cf. State v. Yardley, 267 Kan. 37, 42–43, 978 P.2d 886 (1999) (failure to give PIK Crim.3d 54.01–A was not error because “the jury was sufficiently instructed on the requisite intent of the crimes charged [in the charging instructions]” [ i.e ., the word “intentionally” was included in the elements instructions] ); State v. Phinney, No. 100,067, 2009 WL 2242432, at *l–2 (Kan.App.2009) (unpublished opinion) (same); accord State v. Eichman, 26 Kan.App.2d 527, 528–31, 989 P.2d 795 (no real possibility jury would have rendered different verdict had it been instructed on general criminal intent because defendant failed to show how a layperson's understanding of the word “intentionally”—which was included in the elements instruction-was different from PIK Crim.3d 54.01–A's definition of the word), rev. denied 268 Kan. 890 (1999); State v. Windsor, No. 107,152, 2013 WL 1444399, at *4 (Kan.App.2013) (unpublished opinion) (instructions not clearly erroneous for same reason), rev. denied 297 Kan. –––– (August 29, 2013).
This case is more like State v. Campbell 30 Kan.App.2d 70, 70–75, 39 P.3d 97,rev. denied 273 Kan. 1037 (2002). In Campbell, the defendant was charged with battery against a law enforcement officer (a general intent crime) for throwing jail toilet water onto a deputy sheriff. The jury was instructed that the State had to prove Campbell intentionally caused physical contact with Deputy Magdaleno in a rude, insulting, or angry manner. But the last paragraph of the elements instruction clarified that while the State had to prove Campbell intended to throw the liquid, it need not prove that he intended to throw the liquid onto Nurse Clark, Deputy Magdaleno, or Deputy Fletcher. The Campbell court found that the last paragraph was a misstatement of the law because it could have been interpreted to mean that Campbell could be found guilty for merely intending to throw the liquid. 30 Kan.App.2d at 73. The Campbell court held that the district court's refusal to give the general criminal intent instruction constituted reversible error because although the substance of PIK Crim.3d 54.01–A was included in the elements instruction, the substance was contradicted or confused by the last paragraph. 30 Kan.App.2d at 73–75 (noting that PIK Crim.3d 54.01–A might have been unnecessary had the elements instruction not included the last erroneous paragraph).
Here, the jury was instructed that Eden could be found guilty for merely failing to report in November 2010, even though a KORA violation was not yet a strict liability crime. The instruction error was compounded by the prosecutor's arguments. During both opening and closing arguments, the prosecutor told the jury that the case was not about whether Eden intended to register in November 2010, but whether he did or did not register in November 2010. Moreover, the evidence that Eden intentionally failed to report, detailed above, was not so strong that it rendered the instructional error harmless.
The district court erred by refusing to instruct the jury on general criminal intent.
Eden also argues the district court violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by using his prior convictions to enhance his sentence without requiring the State to prove them to a jury beyond a reasonable doubt.
Eden acknowledges that this issue was decided against him in State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002), and he presents it strictly to preserve his federal review. We are duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position. State v. Elkins, 44 Kan.App.2d 974, 984–85, 242 P.3d 1223 (2010), rev. denied 292 Kan. 967 (2011). There is no indication that the Supreme Court intends to depart from its position on this issue. See State v. Friday, 297 Kan., Syl. ¶ 25, 306 P.3d 265 (2013) (reaffirming Ivory ).
The district court did not err by using Eden's prior convictions to enhance his sentence.
Finally, Eden argues that the State was estopped from prosecuting him for a KORA violation because the Shawnee County Sheriff's Department prevented him from reporting in November 2010.
Because the district court committed a reversible jury instruction error, we need not consider Eden's entrapment by estoppel argument. See People v. Chesebro, No. 301,807, 2012 WL 2814106, at *1–4 (Mich.App.2012) (unpublished opinion) (not reaching entrapment by estoppel argument because found insufficient evidence of a Michigan Sex Offender Registration Act violation).
“The defense of entrapment by estoppel is implicated where an agent of the government affirmatively misleads a party as to the state of the law and that party proceeds to act on the misrepresentation so that criminal prosecution of the actor implicates due process concerns under the Fifth and Fourteenth Amendments.' [Citation omitted.] In order to establish an entrapment-by-estoppel defense, a defendant must prove: (1) that there was an ‘active misleading by a government agent’; (2) that the defendant actually relied upon the agent's representation, which was ‘reasonable in light of the identity of the agent, the point of law misrepresented, and the substance of the misrepresentation’; and (3) that the government agent is ‘one who is responsible for interpreting, administering, or enforcing the law defining the offense.’ [Citations omitted.]” United States v. Bader, 678 F.3d 858, 886 (10th Cir.2012).
Eden is free to pursue an entrapment-by-estoppel defense on retrial. He could argue that he intentionally failed to report in November 2010 because he relied on the sheriff's office's alleged misrepresentation that he would be KORA-compliant if he reported on December 8, 2010.
We need not decide whether Eden's conviction violates his due process rights.
Conviction reversed and case remanded for a new trial with proper jury instructions.
* * *
MALONE, C.J., concurring.
I concur with the result that James M. Eden's conviction of a violation of the Kansas Offender Registration Act (KORA) should be reversed and remanded for a new trial with proper jury instructions. But I write separately to offer additional reasons for reaching this conclusion. This case is complicated for several reasons. First, the case is complicated because an alleged violation of the KORA, in this case the failure to comply with the registration requirements in a timely manner, is a crime of omission rather than a crime of commission. Second, the case is complicated because it involves the distinctions between a strict liability crime, a general intent crime, and a specific intent crime—and courts continue to struggle with the distinctions between these principles of criminal liability. Third, the case is complicated by the fact that the KORA has been substantially amended since Eden was charged with his crime, so the State's prosecution of Eden's alleged offense presents us with a case of last impression.
A good place to begin is to examine the differences between a strict liability crime, a general intent crime, and a specific intent crime. Eden is charged with violating the KORA in November 2010, so throughout this discussion I will refer to the statutes in the Kansas Criminal Code (code), K.S.A. 21–3101 et seq. , as they existed at that time. See K.S.A.2012 Supp. 21–5202 for the classifications of the culpable mental state required to commit a crime under the Revised Kansas Criminal Code.
By default, all crimes under the code are general intent crimes unless otherwise provided in the code. K.S.A. 21–3201(a) states that “[e]xcept as otherwise provided, a criminal intent is an essential element of every crime defined by this code. Criminal intent may be established by proof that the conduct of the accused person was intentional or reckless.” (Emphasis added.) Here, there is no assertion that Eden's conduct was reckless as opposed to intentional. “Intentional conduct is conduct that is purposeful and willful and not accidental. As used in this code, the terms ‘knowing,’ ‘willful,’ ‘purposeful,’ and ‘on purpose’ are included within the term ‘intentional.’ “ See K.S.A. 21–3201(b).
“The distinction between general intent and specific intent crimes is whether, in addition to the intent required by K.S.A. 21–3201, the statute defining the crime in question identifies or requires a further particular intent which must accompany the prohibited acts.” In re C.P.W., 289 Kan. 448, Syl. ¶ 5, 213 P.3d 413 (2009). In other words, a specific intent crime is one in which one of the elements of the crime requires a further particular intent in addition to the general criminal intent required by K.S.A. 21–3201. An example of a specific intent crime is burglary of a dwelling which is defined as knowingly and without authority entering into or remaining within any dwelling “with intent to commit a felony, theft or sexual battery therein.” K.S.A. 21–3715(a).
A strict liability crime is one that requires no criminal intent. Stated differently, a strict liability crime is one in which the mere doing of the prohibited act unaccompanied by any criminal intent constitutes a crime. Under the code, a person may be guilty of an offense without having criminal intent if the crime is: “(1) A misdemeanor, cigarette or tobacco infraction or traffic infraction and the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described, or (2) a violation of K.S.A. 8–1567 or 8–1567a and amendments thereto.” K.S.A. 21–3204.
Here, the parties agree that Eden's alleged violation of the KORA was a general intent crime. In In re C.P.W., the Kansas Supreme Court considered the degree of criminal intent that is required to establish an alleged KORA violation. The Supreme Court began by determining that a KORA violation is not a strict liability crime as defined in K.S.A. 21–3204. 289 Kan. at 453. The Supreme Court also ruled out any notion that a KORA violation is a specific intent crime because the statute defining the crime does not require a further particular intent that must accompany the prohibited acts beyond the general intent required by K.S.A. 21–3201. 289 Kan. at 455–56. Nevertheless, the Kansas Supreme Court held that a KORA violation constitutes a general intent crime, meaning that a criminal intent is an essential element of the crime. 289 Kan. at 456;K.S.A. 21–3201(a). Thus, to establish an alleged KORA violation requires proof that the defendant's conduct is intentional, i.e., willful or purposeful. K.S.A. 21–3201(b).
I will now turn to Eden's claim that the district court erred by refusing to instruct the jury on the definition of general criminal intent. Because Eden requested the jury instruction at his trial, we must review the evidence in the light most favorable to Eden in order to determine whether the instruction should have been given. See State v. Quails, 297 Kan. 61, 68–71, 289 P.3d 311 (2013).
Considering the evidence in the light most favorable to Eden, he was required to report in person to the Shawnee County Sheriff's Office before the end of November 2010. The Shawnee County Sheriffs Office requires a person to make an appointment prior to reporting in person, although there is nothing in the KORA that requires such an advance appointment. Eden called the sheriff's office in mid-November 2010 to make an appointment, but no one answered the phone. He left a voice mail message but no one returned his call. Eden called the sheriff's office again about a week later, still before the end of November 2010, and he was given an appointment on December 8, 2010. Eden's theory of defense was that he contacted the sheriff's office to register well before the last day of November 2010, but he could not register without an appointment and the earliest appointment he received was December 8, 2010. The State offered conflicting evidence. But if the jury believed the evidence offered by Eden, then Eden's conduct in failing to register in November 2010 was not intentional, i.e., willful or purposeful; rather, his failure to timely register was at least partly caused by the Shawnee County Sheriff's policy that Eden make an advance appointment before reporting.
Granted, in the prosecution of a general intent crime, the State “is not obligated to prove an intent to violate a particular statute but rather the intent to do the criminal act which violated the statute. [Citation omitted.]” In re C.P.W., 289 Kan. at 454. But here, the criminal act Eden allegedly committed was his failure to register with the Shawnee County Sheriff's Office in November 2010. The State was obligated to prove that Eden intended not to register in November 2010. Eden's defense to the charge was that he intended to register but was prevented from doing so, at least in part, by the sheriff's policy requiring him to make an advance appointment before reporting.
At trial, Eden requested the general criminal intent instruction provided at PIK Crim.3d 54.01–A, which states as follows:
“In order for the defendant to be guilty of the crime charged, the State must prove that (his)(her) conduct was intentional. Intentional means willful and purposeful and not accidental.
“Intent or lack of intent is to be determined or inferred from all of the evidence in the case.”
The Notes on Use under PIK 3d 54.01–A state that the instruction should be used only when the charged crime requires a general criminal intent and the defendant's state of mind is a substantial issue in the case. But that situation is exactly what we have here. Eden was charged with a general intent crime according to the Kansas Supreme Court's decision in In re C.P.W., and Eden's state of mind was substantially at issue in the case. In fact, Eden's state of mind was the only disputed issue at trial. The evidence, when viewed in the light most favorable to Eden, was sufficient to submit the general criminal intent instruction to the jury to allow it to decide if Eden intentionally, i.e., willfully or purposefully, failed to register in November 2010.
Generally, the defendant's required intent to commit the charged crime is set forth in the elements instruction of the crime. But the elements instruction provided by the district court at Eden's trial contained no language indicating that Eden's conduct must have been knowing or willful in order for him to be guilty of the charged crime. As to the elements of Eden's crime, the district court instructed the jury as follows:
“The defendant is charged with the crime of failure to register as an offender. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“1. That the defendant had previously been convicted of a crime that requires registration under the Kansas Offender Registration Act;
“2. That the defendant failed to report in person during the month of his birthday to the Shawnee County Sheriff's Office;
“3. That this act occurred on or about the 1st day of December, 2010, in Shawnee County, Kansas.”
The jury at Eden's trial was never instructed that his conduct must be intentional, i.e., willful or purposeful, in order for Eden to be guilty of the charged crime. Instead, the jury was instructed that to establish the charge, the State must prove that Eden “failed to report in person during the month of his birthday [November] to the Shawnee County Sheriff's Office.” That fact was undisputed at Eden's trial. Essentially, the jury was instructed that the alleged KORA violation was a strict liability crime that required no criminal intent. But under the law that existed at the time of Eden's alleged offense, the State was required to establish that Eden acted with general criminal intent to be guilty of the crime. See In re C.P.W., 289 Kan. at 456.
The State argues that the substance of PIK Crim.3d 54.01–A was provided to the jury in other instructions, and the State points to the fact that the district court instructed the jury under PIK Crim.3d 54.01 that “[o]rdinarily, a person intends all the usual consequences of his voluntary acts.” But the Notes on Use to PIK Crim.3d 54.01–A make it clear that the instruction at PIK Crim.3d 54.01 “is a rule of evidence and does not purport to charge the jury to find criminal intent necessary for conviction.” Thus, the giving of the instruction at PIK Crim.3d 54.01 on the presumption of intent did not cure the fact that the jury at Eden's trial was never instructed that his conduct must be intentional, i.e., willful or purposeful, in order for Eden to be guilty of the charged crime.
The lack of a jury instruction on general criminal intent at Eden's trial was compounded by the manner in which the prosecutor argued the case to the jury. During the opening statement, the prosecutor stated:
“This case is not a case about whether [Eden] wanted to register, it's not a case about whether he intended to register, this case is about whether did he register in November of 2010 as required by law, or did he not register in November of 2010 as required by law?
“Folks, you're going to see he didn't register in November of 2010.”
During closing argument, the prosecutor stated:
“I told you at the beginning, when I gave opening statements, this [case] isn't about whether ... [Eden] wanted to register ... [or] whether he intended to register, but whether he registered in person during the month of his birth, November, 2010. And quite simply, the evidence shows he did not.
....
“... I encourage you to go to instruction number 9 [the elements instruction]. You won't find the word ‘intent’ in instruction number 9.”
Based on the way the district court instructed the jury at Eden's trial and also based on how the prosecutor argued the case, the jury had no choice but to find Eden guilty of the KORA violation based on the undisputed evidence that Eden failed to register in November 2010. The jury was instructed by the court and told by the prosecutor that Eden's intent, which was hotly disputed at trial, did not matter. This would have been the case if the alleged KORA violation was a strict liability crime, but pursuant to the Kansas Supreme Court's decision in In re C.P.W., the alleged KORA violation was a general intent crime and the State was required to prove Eden's criminal intent as an essential element of the crime. 289 Kan. at 453–56; see K.S.A. 21–3201(a).
Under the unusual facts of this case, the district court's failure to instruct the jury on general criminal intent was error. Furthermore, the error cannot be considered harmless. The district court's failure to instruct the jury on general criminal intent deprived Eden of his entire theory of defense. Under the constitutional harmless error standard, the State fails to show beyond a reasonable doubt that the failure to give the general criminal intent instruction did not affect the outcome of the trial. See State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
For these reasons, I agree with the majority that Eden's conviction should be reversed and his case should be remanded for a new trial. But Eden's case is truly a case of last impression. As the majority opinion notes, and possibly in response to the In re C.P. W. decision, the Kansas Legislature expanded the list of 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. Therefore, as of July 1, 2011, a violation of the KORA is a crime for which “[a] person may be guilty ... without having a culpable mental state.” K.S.A.2012 Supp. 21–5203(f). Under the current law, a defendant's state of mind and reasons for failing to register do not matter in determining whether he or she is guilty of violating the KORA.
As a final point, I take issue with the majority's conclusion that this court need not decide whether Eden's conviction violated his due process rights. Eden argues that the State was estopped from prosecuting him for a KORA violation because the sheriff's office prevented him from reporting in November 2010 and, as a result, his conviction violated his due process rights. If, in fact, Eden's prosecution and conviction violated his due process rights, this court should reverse his conviction outright as opposed to remanding for a new trial. But the State was not estopped from prosecuting Eden for the alleged KORA violation and his conviction did not violate his due process rights. The decisive issue in Eden's case is whether he possessed the general criminal intent to commit the crime, and this issue presents a question of fact for the jury to decide based upon proper instructions from the district court.
* * *
HILL, J.
I must respectfully dissent. I am not persuaded that anything is gained by giving a general intent instruction here. After all, his jury was instructed by the court that “a person intends all of the usual consequences of his voluntary acts.” Eden had reported before. He knew he needed to make an appointment. He was told that he would be in trouble if he waited until December to register. I would affirm Eden's conviction.