State v. McElroy

Decision Date17 March 2006
Docket NumberNo. 92,968.,92,968.
Citation130 P.3d 100
PartiesSTATE of Kansas, Appellee, v. Wilbur R. McELROY, Appellant.
CourtKansas Supreme Court

Nathan B. Webb, assistant appellate defender, argued the cause and was on the brief for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Phill Kline, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by DAVIS, J:

Wilbur McElroy appeals his registration of offender violation conviction under K.S.A. 2002 Supp. 22-4903 and K.S.A.2002 Supp. 22-4904, contending he was tried in an improper venue and the complaint and jury instruction omitted an essential element of the offense. We transferred this case on our own motion pursuant to K.S.A. 20-3018(c). We agree and reverse the conviction.

Defendant, Wilbur McElroy, was convicted of attempted rape in 1999. Upon his release on parole in February 2003, the defendant established a temporary residence at a halfway house in Sedgwick County, Kansas. In compliance with the Kansas Offender Registration Act (KORA), K.S.A.2005 Supp. 21-4901, et seq., he completed the appropriate Kansas Offender Registration Form, listing his address as 3820 Toben, Wichita, Kansas. This form was sent to the Kansas Bureau of Investigation (KBI) in Topeka, Kansas, and a copy was sent to the Sedgwick County Sheriff's Office.

Upon completion of his treatment program at the halfway house, the defendant was assigned to parole officer Danny McKenzie. At their first meeting on March 4, 2003, the defendant reported to McKenzie that he was now living at 1642 N. Poplar. During their next three meetings, on March 6, March 18, and April 1, 2003, the defendant maintained that his residence was still located on North Poplar. The defendant failed to show up for any more scheduled meetings, and McKenzie issued a warrant for the defendant's arrest on April 17, 2003, for absconding from parole. The defendant was apprehended in California in October 2003.

On November 4, 2003, the defendant was charged in Sedgwick County, with an offender registration violation pursuant to K.S.A. 2002 Supp. 22-4904(b)(1) and K.S.A.2002 Supp. 22-4903 based on his failure to inform the Sedgwick County Sheriff's Department of his change of address on or about June 5, 2003. Following a jury trial, the defendant was found guilty and was sentenced to 9 months' imprisonment, consecutive to his remaining postrelease time in the 1999 case.

Complaint/Jury Instruction

On appeal, the defendant argues the district court's failure to properly instruct the jury on the essential elements of a registration of offender violation under K.S.A.2002 Supp. 22-4904(b)(1) was clearly erroneous because the instruction did not charge a crime by requiring the jury to find that the defendant failed to report a change of address to the sheriff, rather than the KBI, as provided under K.S.A.2002 Supp. 22-4904(b)(1).

The State counters that defendant mischaracterizes the argument. The State contends the appropriate inquiry is whether the language set forth in the complaint, after which the instruction was modeled, was sufficient to confer jurisdiction and charge the defendant with a crime. It contends the charging document and the instructions in this case concerning notification to the sheriff were sufficient because the legislative intent of KORA was to ensure that both the law enforcement agency where the defendant was last registered and the KBI are notified within 10 days of the change of address.

Our resolution of this issue is accomplished by first reviewing the relevant statutory procedure under the KORA. K.S.A.2002 Supp. 22-4905(a)(1) requires that any offender who is paroled from prison be informed by the staff of the facility of the duty to register as provided in the KORA. Of note to this case, these duties include:

"(iii) inform the offender that the offender must give written notice of any change of address within 10 days of a change in residence to the law enforcement agency where last registered and the Kansas bureau of investigation;

"(iv) inform the offender that if the offender changes residence to another state, the offender must inform the law enforcement agency where last registered and the Kansas bureau of investigation of such change in residence and must register in the new state within 10 days of such change in residence." (Emphasis added.) K.S.A.2002 Supp. 22-4905(a)(2)(A)(iii) and (iv).

See also K.S.A.2002 Supp. 22-4904(a)(5)(C); K.S.A.2002 Supp. 22-4905(b)(2)(A)(iii) and (iv) (imposing duties on sheriff and court to inform the offender of these identical requirements under different situations).

These requirements are printed on the registration form which the offender must read and sign. K.S.A.2002 Supp. 22-4905(a)(2)(A)(vi). The form is sent to the KBI, which forwards it on to the law enforcement agency where the offender is expected to reside. K.S.A.2002 Supp. 22-4905(a)(2)(B). The offender must verify with the sheriff of the new county that the sheriff has received such offender's information and registration form within 10 days of coming into any county in which he or she resides or temporarily resides for more than 10 days. K.S.A.2002 Supp. 22-4904(a)(2).

Although the offender is instructed that he or she must register with both the law enforcement agency and the KBI upon a change of address, K.S.A.2002 Supp. 22-4904(b)(1) provides: "If any person required to register as provided in this act changes the address of the person's residence, the offender, within 10 days, shall inform in writing the Kansas bureau of investigation of the new address." (Emphasis added.) "After receipt of the change of address, the Kansas bureau of investigation shall forward this information to the law enforcement agency having jurisdiction of the new place of residence within 10 days of such receipt of the change of address." K.S.A.2002 Supp. 22-4904(b)(2).

K.S.A.2002 Supp. 22-4903 provides: "Any person who is required to register as provided in this act who violates any of the provisions of this act is guilty of a severity level 10, nonperson felony."

The information in this case charged the defendant with failing

"to inform in writing, the law enforcement agency, to-wit: Sedgwick County Sheriff's Department, Wichita, Sedgwick County, Kansas, where said WILBUR R. MCELROY was last registered, of any change of address within ten (10) days of said change of address; contrary to Kansas Statutes Annotated 22-4904(b)(1) and 22-4903, Registration of Offender Violation, Severity Level 10, Non-Person Felony."

Similarly, the jury instruction tracked the language of the information:

"The defendant, Wilbur R. McElroy is charged with the crime of Registration of Offender Violation. Mr. McElroy pleads not guilty.

"To establish this charge, each of the following claims must be proved:

"1. That Mr. McElroy was convicted of a crime which required that he register in writing with the Sheriff's Department of his county of residence within 15 days of having established either a temporary or permanent residence in that county and, thereafter, to register in writing within 10 days of any change of his residential address;

"2. That Mr. McElroy failed to notify in writing the Sheriff of Sedgwick County within 10 days of a change of his residential address; and

"3. That this act occurred on or about the 5th day of June, 2003, in Sedgwick County, Kansas."

Apparently the State relied upon the 1996 version of K.S.A. 22-4904 in charging the defendant with a registration of offender violation and in drafting the jury instructions. This is evidenced by the fact that this earlier version of the statute granted the offender 15 days, rather than 10 days, to register with the local sheriff at the new address, and subsection (b)(1) required that the offender also inform "the law enforcement agency where last registered of the new address" within 10 days of a change of address. See K.S.A.1999 Supp. 22-4904(a)(2); K.S.A.1996 Supp. 22-4904. In 1997, the legislature amended subsection (b)(1) to require that the offender's notice go instead to the KBI, the requirement found in the current statute applicable to this case. See K.S.A.2002 Supp. 22-4904(b)(1); K.S.A.1997 Supp. 22-4904(b)(1).

Although the defendant frames the issue as a jury instruction violation, the State is correct that he is also really challenging the sufficiency of the complaint to charge a crime. The sufficiency of a charging document to confer jurisdiction is a question of law over which an appellate court has unlimited review. State v. Hooker, 271 Kan. 52, 60, 21 P.3d 964 (2001). As this issue is being raised for the first time on appeal, the post-State v. Hall, 246 Kan. 728, 764-65, 793 P.2d 737 (1990), overruled in part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003), standard of review applies:

"The post-Hall standard applies a common-sense interpretation of complaints and informations and requires this court to look at whether the claimed defect in the information has prejudiced the defendant in the preparation of his or her defense, impaired the defendant's ability to plead the conviction in any subsequent prosecution, or limited the defendant's substantial rights to a fair trial." State v. Martis, 277 Kan. 267, 275, 83 P.3d 1216 (2004).

"The orderly resolution of criminal law issues requires timely raising of claims relating to the validity of an information. Tardily challenged informations are to be construed liberally in favor of validity. The validity of an information is to be tested by reading the information as a whole. The elements of the offense may be gleaned from the information as a whole. An information not challenged before verdict or finding of guilty or pursuant to K.S.A. 22-3502 by a motion for arrest of judgment will be upheld unless it is...

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