State v. Genson

• Decision Date: 29 July 2022
• Docket Number: 121,014
• Citation: 513 P.3d 1192
• Parties: STATE of Kansas, Appellee, v. Daniel Earl GENSON III, Appellant.
• Court: Kansas Supreme Court

513 P.3d 1192

STATE of Kansas, Appellee,

v.Daniel Earl GENSON III, Appellant.

No. 121,014

Supreme Court of Kansas.

Opinion filed July 29, 2022.

Caroline M. Zuschek, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

David Lowden, deputy county attorney, argued the cause, and Barry R. Wilkerson, county attorney, Bethany C. Fields, deputy county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

Per Curiam:

Daniel Earl Genson III challenges the Court of Appeals decision affirming his conviction for violating the Kansas Offender Registration Act by failing to register. The issue is whether the Legislature's decision to make the crime of failure to register a strict liability felony violates Genson's substantive due process rights. We conclude it does not.

FACTS AND PROCEDURAL BACKGROUND

After his conviction for attempted voluntary manslaughter, Genson needed to register as a violent offender under KORA. On August 29, 2017, he did so at the Riley County Police Department. There, he met investigations secretary Shannon Ascher, who described his demeanor as "normal." The forms Genson completed informed him he had to register every May, August, November, and February, and again upon certain occasions, such as when his address changed. Ascher told Genson about these requirements. On September 18, Genson came in to report a change of phone number. He came in again on October 9 to report an address change.

But Genson failed to show up for his registration appointment in November. This does not, itself, establish a failure to register; Genson had until the end of the month to fulfill his registration obligations. To help "make sure he [didn't] miss that month," Ascher tried to call Genson at his own number and his mother's number. Ascher ultimately failed to reach him, and Genson did not register in November. But he registered on December 15 and appeared "normal" at that time.

The State charged Genson with a violation of KORA under K.S.A. 2017 Supp. 22-4903(a) and (c)(1)(A), a severity level six felony, based on his failure to report in person during the month of November 2017. Before trial, the parties stipulated Genson had been convicted of a non-sexual crime requiring registration under KORA. Genson filed a notice of intent to assert a defense of mental disease or defect with no accompanying information, but the State objected because K.S.A 2020 Supp. 21-5203(e) eliminated any mens rea element for a KORA violation, making it a strict liability offense. In reply, Genson argued, among other things, that the State's construction would allow for the conviction of "an individual who falls into a coma during his month of registration and is physically and mentally incapable of complying with K.S.A. 22-4901 et seq." Genson did not clearly articulate an argument that his mental illness rendered him physically incapable of complying with his registration obligations. Nor did Genson's reply raise a constitutional claim, although he would later develop the same arguments in challenging the statute's constitutionality. The district court rejected Genson's request for his mental-disease-or-defect defense, agreeing with the State that mens rea is not an element of the crime charged. Accordingly, it held Genson's mental health in November of 2017 was irrelevant.

The case went to jury trial. During trial, the State asked the district court to bar any mention of Genson's mental health because it was not relevant to the crime charged. Genson's attorney noted that Genson had been involuntarily committed at Osawatomie State Hospital for roughly the first half of December 2017, and challenged the constitutionality of strict liability registration violation offenses.

Genson's attorney asserted Genson had a constitutional right to present his mental health defense, that he did not "believe that the strict liability statute for KORA is constitutional, period," and that "there's a constitutional argument as to the statute and as to why mental health issues should be able to be discussed to the jury." While Genson's counsel referenced physical incapacity briefly, he did not argue that Genson was physically unable to comply with his registration obligations by virtue of a mental disease or defect or that Genson's conduct was involuntary under K.S.A. 2020 Supp. 21-5201(a).

The district court did not rule on the statute's constitutionality but repeated the substance of its previous written ruling "that generally questions, inquiries, evidence, or for that matter argument related to defense of mental defect are not going to be allowed." As the district court put it, a ruling on the statute's constitutionality "will be the Appellate Court's function." In its eventual Journal Entry of Jury Trial, the district court characterized this as a ruling on the State's motion "in limine."

At the end of the State's case, Genson's counsel made these proffers of "what testimony would have been if this Court had allowed us to go into mental health issues":

• Ascher "is familiar with K.S.A. 22-4904 regarding the duties of parties such as state hospitals, i.e., Osawatomie State Hospital."

• "This court and the State of Kansas had involuntarily committed Mr. Genson to Osawatomie" after Genson "actually took himself to a hospital."

• Genson "would have testified that he had not been on his medications in the month of November, that he became cognizant enough to reach out to his mother to ask for transportation to go to the hospital because he knew he needed help. He was unable to reach his mother and Mr. Genson was able to get himself to the hospital. He would testify he believed that would be the end of November, beginning of December."

• Genson "would have been in the hospital on December 2nd."

• "He spent his time at Osawatomie up through December 14th. When he was out of Osawatomie and medicated on his proper treatment plan, he registered the following day."

Once Genson had been committed in the beginning of December of 2017, his counsel argued, it was the hospital's responsibility to register him, meaning he was only "technically incompliant" for "a day to day and a half." Except for the above-referenced proffer, Genson introduced only one exhibit: his registration form from December 15, 2017. He put forth no other evidence.

Genson was found guilty. Before sentencing, Genson moved to dismiss the case because K.S.A. 2020 Supp. 21-5203(e) was "unconstitutional under the Due Process Clause" as it applied a strict liability standard to a crime of inaction. Genson also filed a Renewal of Motion for Judgment of Acquittal, Motion for Judgment Notwithstanding the Verdict, and Motion for a New Trial, in which he argued, inter alia :

"7. Furthermore, the Court ruled that Mr. Genson was barred from presenting any theory of defense in this case, specifically ruling that evidence concerning Mr. Genson's mental state during the month of November 2017 was inadmissible and irrelevant.

"8. Mr. Genson proffered evidence that would have established that Mr. Genson's mental condition during the month of November 2017 was unstable at best, and that Mr. Genson turned himself into the authorities on December 2, 2017. Law enforcement officers were so concerned with Mr. Genson's mental condition that he was nearly immediately transported to Osawatomie State Mental Hospital while the Riley County Attorney's Office filed a care and treatment case.

"9. The Court's ruling also effectively deprived Mr. Genson of his unquestioned Constitutional right to testify in his own defense in any meaningful way. Without being able to testify about what was taking place in his life during November 2017, the reason he turned himself into the authorities on December 2, 2017, his subsequent admission to Osawatomie State Hospital, or even his initial registration address in December 2017, Mr. Genson's potential trial testimony was essentially limited to stating his name for the record and immediately stepping down to return to the defense table.

"10. The foregoing is a significant and incurable error and was prejudicial to the defendant, effectively robbing him of any ability to defend himself.

"11. In addition, the exclusion of Mr. Genson's mental health evidence deprived the jury of their inherent power to convict only in appropriate circumstances, regardless of the evidence presented by the State."

Again, Genson raised no argument that his mental illness physically incapacitated him in November of 2017. Nor did he claim his failure to register was involuntary for purposes of 2020 Supp. K.S.A. 21-5201(a).

At sentencing, Genson's counsel argued the imposition of strict liability unconstitutionally "violates KORA offenders' due process rights under the Fifth and Fourteenth Amendments, essentially their substantive due process rights." The district court denied this motion. Even so, over the State's objection, the district court granted Genson both a durational and dispositional departure based on his mental health struggles and the de minimis nature of his late registration violation.

Genson appealed to the Court of Appeals, raising four issues related to his inability to present a defense based on his mental health in November 2017. Genson did not raise any new argument on appeal as to the physical voluntariness of his conduct under K.S.A. 2020 Supp. 21-5201(a) and did not claim he was physically unable to register. Instead, Genson argued that K.S.A. 2020 Supp. 21-5203(e) violated his substantive due process rights by making a KORA violation a strict liability crime. The panel disagreed, concluding the strict liability character of the offense was not unconstitutional under a rational basis review. 59 Kan. App. 2d at 200-16, 481 P.3d 137. The panel majority refused to address the rest of Genson's claims on a "prudential" basis because they were raised for the first time on appeal. 59 Kan. App. 2d at 200, 481 P.3d 137.

In response, Judge Atcheson authored a...