Opinion
No. 104,611.
2013-06-14
STATE of Kansas, Appellee, v. Wesley L. ADKINS, Appellant.
Appeal from Sedgwick District Court; Eric R. Yost, Judge. Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Boyd K, Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Eric R. Yost, Judge.
Lydia Krebs, of Kansas Appellate Defender Office, for appellant. Boyd K, Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., ATCHESON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
This case is remanded to the Court of Appeals as to Issue II only, regarding the district court's failure to give a jury instruction on the definition of “residence” as it related to the offender registration charges against Wesley L. Adkins. The Supreme Court remanded to the Court of Appeals for consideration in light of State v. LeClair, 295 Kan. 909, 287 P.3d 875 (2012).
The parties are familiar with the underlying facts. Adkins was convicted of one count of aggravated kidnapping, two counts of aggravated battery, one count of aggravated child endangerment, and two counts of offender registration violation. The district court sentenced Adkins to a total prison term of 371 months. The district court ordered the sentences on the aggravated kidnapping and aggravated battery convictions to run consecutively and the sentences on the other convictions to run concurrently.
Adkins argues on appeal that the district court's failure to define “residence” as it related to the offender registration charges was reversible error. Adkins did not request such a definitional instruction at trial, so we apply a clearly erroneous standard on appeal. See K.S.A. 22–3414(3).
Adkins was charged with violating K.S.A. 22–4904(b), which states: “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 law enforcement agency where such offender last registered and the Kansas bureau of investigation of the new address.” (Emphasis added.) Adkins contends on appeal that it was clear error for the district court not to instruct the jury on the following definition of “residence” found in K.S.A.2009 Supp. 77–201Twenty-third:
“ ‘Residence’ means the place which is adopted by a person as the person's place of habitation and to which, whenever the person is absent, the person has the intention of returning. When a person eats at one place and sleeps at another, the place where the person sleeps shall be considered the person's residence.”
At trial, Adkins testified that he lived with his ex-girlfriend, Mercedes Bates, at the Danish Village apartments in Wichita until August 2009. Adkins testified that following an incident with Bates in August 2009, he left the apartment and lived at “numerous places” but did not stay at any single place for more than a few days in a row and never had a new address. Adkins testified that he was waiting until he found a new permanent address before he reported a change of residence to his parole officer.
The initial Court of Appeals panel rejected Adkins' argument that the district court's failure to define “residence” was clear error, relying in part on State v. LeClair, 43 Kan.App.2d 606, 228 P.3d 1103 (2010), rev'd295 Kan. 909. In LeClair, the Court of Appeals had ruled that “[a]n offender required by law to register at the local sheriff's office and the Kansas Bureau of Investigation must notify those offices in writing when he or she intends to permanently leave a residence whether he or she has established a new residence or not.” (Emphasis added.) 43 Kan.App.2d at 611. Based on the ruling in LeClair, the panel determined that it would not have mattered whether the district court had instructed the jury on the definition of “residence” at Adkins' trial. 43 Kan.App.2d at611–12.
But the Court of Appeals panel in LeClair was reversed by the Kansas Supreme Court in LeClair, 295 Kan. 909. In LeClair, the Kansas Supreme Court analyzed the definition of “residence” at K.S.A. 77–201Twenty-third in relation to the offender registration requirements and determined that the definition of residence is consistent with requiring the offender to register within 10 days of obtaining a new address of residence. 295 Kan. at 913. The Supreme Court specifically held that “under K.S.A. 22–4904(b), an offender does not change the address of residence until obtaining a new place of habitation where the person intends to remain.” 295 Kan. at 914.
In light of the Supreme Court's holding in LeClair, and in light of Adkins' trial testimony that he had not yet found a new residence to report to his parole officer, we now conclude that the district court erred by failing to define “residence” as it related to the offender registration charges against Adkins. Also, we are firmly convinced a jury would have rendered a different verdict if the trial error had not occurred. See State v. Williams, 295 Kan. 506, Syl. ¶ 5, 286 P.3d 195 (2012). Therefore, we reverse Adkins' convictions of two counts of offender registration violation and remand for a new trial only on those two counts. Adkins' remaining convictions are affirmed. The reversal of Adkins' offender registration convictions does not change his controlling sentence.
Finally, we note that K.S.A.2012 Supp. 22–4905(e) now provides that a transient offender must “report in person to the registering law enforcement agency of such county or location of jurisdiction in which the offender is physically present within three business days of arrival in the county or location of jurisdiction.” However, this provision was enacted in 2011 and does not affect the offender registration charges against Adkins.
Affirmed in part, reversed in part, and remanded with directions.