Opinion
No. 106,022.
2012-06-29
STATE of Kansas, Appellee, v. Todd Randall BARTLOW, Appellant.
Appeal from Atchison District Court; Robert J. Bednar, Judge. Heather Cessna, of Kansas Appellate Defender Office, for appellant. Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Atchison District Court; Robert J. Bednar, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., McANANY and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Todd Randall Bartlow was convicted following a bench trial of 13 counts of failure to register as a sex offender in violation of K.S.A. 22–4903(a) and K.S.A. 22–4904(c). He appeals the sufficiency of the evidence and the validity of his jury trial waiver. We hold the trial evidence was insufficient to prove his guilt beyond a reasonable doubt and reverse his convictions. As a result, the jury trial waiver question is moot.
Factual and Procedural Background
Bartlow was convicted of attempted rape in Wyandotte County. On September 24, 2009, he registered as a sex offender at the Atchison County Sheriff's Office. He provided an Atchison County address as his residence.
Melissa Hale, an administrative assistant in the sheriff's office, instructed Bartlow to report to the sheriff's office in November 2009. Bartlow did not report in November 2009 or any month thereafter. As a consequence, the State charged Bartlow with 13 counts of failure to register, one for each month from November 2009 through November 2010.
At trial, Hale was asked whether she knew “where Todd Bartlow has actually resided since November, 2009.” She answered, “No.” The State presented no other witnesses, and aside from the registration document, it presented no evidence of Bartlow's residence from November 2009 through November 2010. Bartlow called his father as a witness, but the trial court threatened the father with contempt based on his behavior in court and discounted his testimony when ruling. The State on appeal likewise asks us to discount the testimony of Bartlow's father.
As the trial court found, “the only evidence as to the residence is that which [Bartlow] supplied” when registering. Based on this and Bartlow's failure to report, the trial court convicted him on all 13 counts. Bartlow appeals.
Sufficiency of the Evidence
Bartlow argues the evidence was insufficient to convict him because “the State failed to put on any affirmative evidence of where [he] was living after September 2009.” The State candidly concedes the “only evidence of [Bartlow's] intended residence was [his] registering in Atchison County,” but it maintains “absent evidence to the contrary it was reasonable for the [district] court to find that he remained a resident of Atchison County.”
“ ‘ “When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” ‘ [Citation omitted.]” State v. McCaslin, 291 Kan. 697, 710, 245 P.3d 1030 (2011).
To the extent we must interpret statutes, our review is unlimited. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
K.S.A. 22–4904(c) states:
“Any person who is required to register under this act shall report in person three times each year to the sheriff's office in the county in which the person resides or is otherwise located. The person shall be required to report once during the month of the person's birthday and every four months thereafter.”
Pursuant to K.S.A. 22–4903(a),
“[a]ny violation of ... the duties set forth in K.S.A. 22–4904 through K.S.A. 22–4907 ... which continues for more than 30 consecutive days shall, upon the 31 st consecutive day, constitute a new and separate offense and shall continue to constitute a new and separate offense upon completion of every 30 days thereafter for as long as the offense continues.”
Bartlow was charged with violating these statutes in Atchison County from November 2009 through November 2010. To be found guilty, Bartlow had to reside or otherwise be located in Atchison County during that time period. The only such evidence was Bartlow's registration with an Atchison County address in September 2009. The State presented no evidence verifying the registration address, and no other facts connected Bartlow to the registration address, such as family, friends, or work.
The State's argument that “absent evidence to the contrary it was reasonable for the [district] court to find that he remained a resident of Atchison County” suggests a rebuttable presumption on the element of residence. We do not believe the statutes provide this presumption. First, there is no presumption in the text of the statutes. We will not read a presumption into the text, especially since these are criminal statutes subject to strict construction in favor of the accused. See State v. Bonner, 290 Kan. 290, 296, 227 P.3d 1 (2010).
Second, the presumption suggested by the State would impermissibly shift the burden to Bartlow to prove he did not live at the registered address. See State v. Elrod, 38 Kan.App.2d 453, Syl. ¶ 17, 166 P.3d 1067 (2007), rev. denied 285 Kan. 1175 (2008). The State relies on an older divorce case, Irvin v. Irvin, 182 Kan. 563, 566, 322 P.2d 794 (1958), which generality provides that a domicile lasts until a new domicile is established. This general rule is contrary, however, to K.S.A. 22–4904 and other registration statutes, which do not presume domicile but focus on the actual location of an offender. Presuming domicile would not fit the purpose of registration statutes, which is “to protect the public from sex offenders as a class of criminals who are likely to reoffend and to provide public access to the registration information.” State v. McElroy, 281 Kan. 256, 263, 130 P.3d 100 (2006). The State's argument also presumes that Bartlow did not establish a new domicile, which was unproven as well.
Finding no presumption, we will consider whether the State met its burden “to prove beyond a reasonable doubt every element of the crime with which an accused is charged.” Elrod, 38 Kan.App.2d 453, Syl. ¶ 17. Research located no case similar to the present one, where residence was proven by registration alone. Instead, the cases generally show the State presented evidence such as police investigations or eyewitness accounts from landlords or family members of the defendant confirming the offender's residence. See State v. Canup, 300 Ga.App. 678, 681, 686 S.E.2d 275 (2009); State v. Johnson, 770 N.W.2d 814, 823 (Iowa 2009); Potts v. State, 955 So.2d 913, 916 (Miss.App.2007); State v. McAvoy, 767 N.W.2d 874, 877 (N.D.2009); Mantooth v. State, 269 S.W.3d 68, 77 (Tex.App.2008); State v. Castillo, 183 P.3d 355, 357–58 (Wash.App.2008).
The State did not produce such evidence in the present case. Absent verification of the registration address or other evidence connecting him to it, Bartlow could have supplied that address in September 2009 without actually residing there or, if he resided there, he could have moved. We conclude that, viewed in the light most favorable to the State, the facts would not convince a rational factfinder beyond a reasonable doubt that Bartlow resided in Atchison County from November 2009 through November 2010.
Given our holding, the second claim of error raised by Bartlow is moot. See State v. Richardson, 289 Kan. 118, 130, 209 P.3d 696 (2009).
Reversed.