State v. Genson, No. 121,014

• Decision Date: 18 December 2020
• Docket Number: No. 121,014
• Citation: 481 P.3d 137
• Parties: STATE of Kansas, Appellee, v. Daniel Earl GENSON III, Appellant.
• Court: Kansas Court of Appeals

481 P.3d 137

STATE of Kansas, Appellee,

v.Daniel Earl GENSON III, Appellant.

No. 121,014

Court of Appeals of Kansas.

Opinion filed December 18, 2020.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Bethany C. Fields, deputy county attorney, Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.

Before Green, P.J., Atcheson and Gardner, JJ.

Gardner, J.:

Daniel Earl Genson III appeals his conviction for failing to register under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. Arguing that he should not have been held criminally responsible because of his mental illness, Genson challenges the constitutionality of K.S.A. 2019 Supp. 21-5209 (stating the mental disease and defect defense) and K.S.A. 2019 Supp. 21-5203(e) (making KORA violations a strict liability crime). Genson also argues that the district court erred by failing to instruct the jury about mental culpability and jury nullification and erred by barring evidence of his mental illness that supported nullification. For the reasons stated below, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The State charged Genson with failing to register under KORA after he did not register in November 2017. In response, Genson notified the district court of his intent to present a defense of mental disease or defect under K.S.A. 22-3219. In a motion to continue, Genson explained that he was sent to Osawatomie State Hospital on December 3, 2017—"less than 3 days after the alleged violation." The State objected to the use of an insanity defense, arguing that failing to register under KORA was a strict liability crime that does not allow for an insanity defense as prescribed. See K.S.A. 2019 Supp. 21-5209. Genson countered that a KORA violation is not a strict liability offense but even if it were, evidence of his mental illness was admissible to show why he failed to register in November. But the district court agreed with the State and ruled that Genson could not present a mental disease or defect defense at trial of a strict liability crime.

At the beginning of trial, the State moved to bar evidence of Genson's mental health. Genson responded that such exclusion of relevant evidence would infringe on his right to present a defense and on the jury's right to determine criminal liability. Genson also argued that it was unconstitutional to make a KORA violation a strict liability crime. But the district court sustained the State's motion to exclude the evidence of mental illness, finding that a violation for failing to register under KORA was a strict liability offense that did not require proof of a mental state. Thus a mental defect defense under K.S.A. 2019 Supp. 21-5209 was inapplicable.

At trial, the State called Shannon Ascher, the sole witness to testify. Ascher worked as an investigations secretary for the Riley County Police Department. She testified that Genson first registered as an offender on August 29, 2017. On that day, Ascher told Genson of the law and the registration requirements that he had to follow. She gave him a brochure that explained the registration requirements. She reviewed the whole pamphlet with Genson and marked on it the dates on which he was required to register. She also orally told Genson that he needed to register in May, August, November, and February. She gave him an appointment card for his date to register in November. She also gave Genson a written acknowledgment form that explained the registration rules. Genson read through that acknowledgment, initialed each line, and then signed and dated it.

In addition to requiring Genson to register on the stated months, the documents required Genson to tell Ascher in person if his address or phone number changed. Ascher told Genson of that requirement, and Genson complied with that requirement—on September 18 he reported his new phone number, and on October 9, 2017, he reported his new address. On both dates, Genson signed and dated acknowledgment forms.

But Genson did not show up for his appointment to register in November. Ascher tried to call Genson at his phone number and at his mother's, unsuccessfully. Ascher generally tries to call an offender soon after they miss an appointment, then again near the end of the month. She did so with Genson but did not reach him. So Ascher had no contact with Genson in November and Genson never registered in November. Yet Genson returned to Ascher's office on December 15, 2017, to update his information because he had missed the month of November. Each time Ascher met with Genson, his demeanor and actions seemed "normal" to her.

Genson presented no evidence. But before resting he renewed his motion to rely on a mental disease or defect defense, proffering this evidence:

• The State had involuntarily committed Genson to Osawatomie State Hospital in early December after he asked his mother to take him there;

• in the weeks before his commitment, he was not properly medicated for his mental health issues;

• Ascher knew that under state statute, Osawatomie State Hospital had a duty to register for its patients' undergoing treatment;

• Genson's competency evaluation showed that he had been diagnosed with posttraumatic stress disorder

, schizophrenia, split personality, depression, and anxiety; and

• Genson suffered from hallucinations and had a history of involuntary commitments and suicide attempts.

The court denied Genson's motion to rely on a mental disease or defect defense.

During the instruction conference, Genson proposed a jury instruction that included a mens rea for failing to register. He asked the court to instruct the jury that a KORA violation required the State to show the defendant had "intentionally failed" to register. The district court denied that request and instead followed the Pattern Jury Instruction, which has no mens rea element for a KORA violation.

The jury convicted Genson of failing to register under KORA. He then moved to dismiss his conviction as a violation of his due process rights, but the district court denied that motion.

At sentencing, the district court admitted evidence of Genson's mental health and granted Genson's motion for a downward departure based in part on Genson's mental illness. The district court then sentenced him to 24 months' probation and stayed his 24-month prison term.

Genson raises four issues on appeal.

I. DID K.S.A. 2019 SUPP. 21-5209 UNCONSTITUTIONALLY ABOLISH THE INSANITY DEFENSE BY FORGOING THE MENTAL CAPACITY PRONG OF THE M'NAGHTEN TEST?

Genson first challenges the constitutionality of K.S.A. 2019 Supp. 21-5209, the mental disease and defect defense. This statute provides: "It shall be a defense to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the culpable mental state required as an element of the crime charged. Mental disease or defect is not otherwise a defense." K.S.A. 2019 Supp. 21-5209. Before the enactment of this statute, Kansas used the M'Naghten rule as the proper test for an insanity defense. See State v. Lamb , 209 Kan. 453, 472, 497 P.2d 275 (1972) ; State v. Nixon , 32 Kan. 205, Syl. ¶ 1, 4 P. 159 (1884) (adopting the M'Naghten rule). Under that rule, a defendant could not be held criminally liable when he or she did not know the nature and quality of his or her act or, in the alternative, when he or she did not know right from wrong with respect to that act. State v. Baker , 249 Kan. 431, 450, 819 P.2d 1173 (1991).

But K.S.A. 2019 Supp. 21-5209 now embraces what is known as the " ‘mens rea approach.’ The mens rea approach allows evidence of mental disease or defect as it bears on the mental element of a crime but abandons lack of ability to know right from wrong as a defense." State v. Kahler , 307 Kan. 374, 400, 410 P.3d 105 (2018), aff'd Kahler v. Kansas , 589 U.S. ––––, 140 S. Ct. 1021, 1037, 206 L. Ed. 2d 312 (2020).

Genson argues that K.S.A. 2019 Supp. 21-5209 abolishes the insanity defense, violating his:

• substantive due process rights under the Fourteenth Amendment to the United States Constitution and section 18 of the Kansas Constitution Bill of Rights ;

• jury trial rights under section 5 of the Kansas Constitution Bill of Rights ; and

• liberty interests under section 1 of the Kansas Constitution Bill of Rights.

The State responds in part that Kahler defeats Genson's substantive due process claims. Kahler held that Kansas did not abolish the insanity defense, but "only channels to sentencing, the mental health evidence that falls outside its intent-based insanity defense." 140 S. Ct. at 1031. Kahler further held that due process does not require Kansas to adopt an insanity test that turns on a defendant's moral incapacity:

"We therefore decline to require that Kansas adopt an insanity test turning on a defendant's ability to recognize that his crime was morally wrong. Contrary to Kahler's view, Kansas takes account of mental health at both trial and sentencing. It has just not adopted the particular insanity defense Kahler would like. That choice is for Kansas to make—and, if it wishes, to remake and remake again as the future unfolds. No insanity rule in this country's heritage or history was ever so settled as to tie a State's hands centuries later." 140 S. Ct. at 1037.

Preservation

Genson concedes that he raises the issue of whether K.S.A. 2019 Supp. 21-5209 is unconstitutional for the first time on appeal. Issues not raised before the district court generally cannot be raised on appeal. See State v. Kelly , 298 Kan. 965, 971, 318 P.3d 987 (2014). Likewise, constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. State v. Daniel , 307 Kan. 428, 430, 410 P.3d 877 (2018). But exceptions may apply when a newly asserted theory involves only a question of law arising on proved or admitted facts and finally determines the case or when consideration of the theory is necessary to serve the...