State v. Burdick

347 P.3d 1214 (Table)

STATE of Kansas, Appellee

v.Thomas BURDICK, Appellant.

110,472.

Court of Appeals of Kansas.

May 8, 2015.

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...