Opinion
No. 107,967.
2013-07-5
STATE of Kansas, Appellee, v. Jose C. ESCALANTE, Appellant.
Appeal from Sedgwick District Court; Jeffrey Syrios, Judge. Ryan Eddinger, of Kansas Appellate Defender Office, for appellant. David Lowden, chief attorney, appellate division, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Jeffrey Syrios, Judge.
Ryan Eddinger, of Kansas Appellate Defender Office, for appellant. David Lowden, chief attorney, appellate division, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., ATCHESON and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jose C. Escalante challenges the sufficiency of the evidence to convict him of failure to register as an offender. The evidence, when viewed in the light most favorable to the State, supports the jury verdict. At his sentencing, the district court granted his downward durational departure motion to 77 months' imprisonment. Having found more than sufficient evidence to support his conviction, we affirm.
Facts
In 2010, Escalante pled guilty to misdemeanor sexual battery in Case No. 09 CR 1827 and was sentenced to 12 months in jail. As part of his plea bargain, the trial testimony reflected he signed a journal entry which read; “[D]efendant is aware that he is required to register pursuant to the Kansas Offender Registration Act, KSA 22–4902.”
On June 29, 2010, Escalante was released from jail on the misdemeanor sexual battery charge in Sedgwick County. He did not register with the Sedgwick County Sheriffs Office upon his release. In October 2011, the State filed a complaint accusing Escalante of failure to register as an offender within 10 days of moving to Sedgwick County, a crime under K.S.A.2010 Supp. 22–4902 and K.S.A.2010 Supp. 22–4904(a).
Daniel Maier, Escalante's probation officer, testified he was assigned to supervise Escalante on an unrelated case in September 2011. Maier discovered Escalante had a registration requirement from his misdemeanor sexual battery conviction. Maier informed Escalante of his obligation to register at their second probation meeting and showed Escalante a copy of the journal entry from Case No. 09 CR 1827, reflecting the requirement for him to register. Escalante told Maier he did not have to register, as his case was only a misdemeanor. Maier explained to Escalante the requirements from the journal entry, and Escalante told him he did not agree with the requirement and was not going to register.
At their next meeting on October 3, 2011, Maier told Escalante he had researched his need to register and his failing to register would be a new felony offense, read the language of the journal entry to him, and gave him a copy of the journal entry. Maier testified Escalante responded the journal entry did not tell him anything, he was not going to register, and he would look for a warrant in the next week.
The State called several witnesses during the trial who testified about Escalate's obligation to register and the fact he failed to register. We see no need to add their individual testimony to this opinion. It was the jury's responsibility to weigh and consider the credibility of each witness.
Based on the evidence presented, the jury found Escalante guilty of failure to register as an offender. Posttrial Motions
Escalante moved for a judgment of acquittal and a new trial, claiming the State had failed to prove its case. Escalante also filed a motion for departure, asserting he had proven himself amenable to probation and arguing there was little harm caused by the crime. The district court ruled nothing had changed since the jury verdict and denied Escalante's motion for a new trial. Escalante's criminal history is A, and the crime of failing to register as an offender is a severity level 5 person felony. The normal sentencing range with his criminal history under the Kansas Sentencing Guidelines Act would be 122, 130 and 136 months. The court granted Escalante's durational departure motion and sentenced him to 77 months, to run consecutive to another sentence. Escalante filed a timely appeal.
Analysis
Escalante claims there was insufficient evidence to establish his general intent to violate his registration obligations.
When the sufficiency of the evidence is challenged in a criminal case, “the standard of review is whether, after reviewing 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.” State v. Gant, 288 Kan. 76, 83, 201 P.3d 673 (2009). This court will not reweigh the evidence or credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). Only in rare cases where the testimony is so incredible that no reasonable fact finder could find guilt beyond a reasonable doubt will a guilty verdict be reversed. State v. Matlock, 233 Kan. 1, 5–6, 660 P.2d 945 (1983); see State v. Naramore, 25 Kan.App.2d 302, 322, 965 P.2d 211,rev. denied 266 Kan. 1114 (1998).
K.S.A. Supp.2010 22–4902(a), (b), and (c) provides in relevant part:
“As used in the Kansas offender registration act, unless the context otherwise requires:
“(a) ‘Offender’ means: (1) A sex offender as defined in subsection (b);
....
“(b) ‘Sex Offender’ includes any person who, on or after April 14, 1994, is convicted of any sexually violent crime set forth in subsection (c) or is adjudicated as a juvenile offender for an act which if committed by an adult would constitute the commission of a sexually violent crime set forth in subsection (c).
“(c) ‘Sexually violent crime’ means:
....
(9) sexual battery as defined by K.S.A. 21–3517 and amendments thereto.”
K.S.A. Supp.2010 22–4904(a) provides: “Except as provided in subsection (a)(2), within 14 days of the offender coming into any county in which the offender resides or is temporarily domiciled for more than 14 days, the offender shall register with the sheriff of the county.”
Escalante was convicted under K.S.A.2010 Supp. 22–4902 and K.S.A.2010 Supp. 22–4904(a), K.S.A.2010 Supp. 22–4902(b)(1) requires registration for anyone convicted of a sexually violent crime after April 14, 1994. K.S.A.2010 Supp. 22–4905(b)(1)–(2) requires the court to inform an offender as defined by K.S.A.2010 Supp. 22–4902 of his or her duty to register at the time of sentencing.
To prove the charge of failure to register, the State must show the defendant acted with general intent in failing to meet the requirements of the statutes. In re C.P.W., 289 Kan. 448, 456, 213 P.3d 413 (2009). “General intent is a state of mind in which a person is conscious of the act he or she is committing without necessarily understanding the consequences of that action.” State v. Spicer, 30 Kan.App.2d 317, 324, 42 P.3d 742,rev, denied 274 Kan. 1117 (2002).
Escalante recognizes failure to register is a general intent crime and argues his unintentional actions fail to establish the intent necessary for a conviction. Escalante claims that he had a reasonable belief that he did not have to register because the court, the sheriff, prison officials, and his attorney all failed to notify him of this requirement. However, their failure does not relieve Escalante of his own personal responsibility to comply with the registration requirements listed on the journal entry. The evidence reflects Escalante was told he needed to register and failed to heed the warnings he received. Escalante had over a year to comply with the journal entry and refused to inquire about the necessity of registering, even after being told to do so repeatedly by his probation officer. Escalante characterizes his behavior as a demonstration of a reasonable belief he did not have to register and claims he “honestly” and “reasonably” believed he was not required to register as an offender. His argument fails, as he was told about the requirement to register at least three times. Escalante replied he was not going to register because he did not agree with the required registration. He now knows the consequences of his decision.
Escalante attempts to redefine the language of general intent by arguing he did not intentionally break the law. General intent does not require this level of purpose, as it “is a state of mind in which a person is conscious of the act he or she is committing.” Spicer, 30 Kan.App.2d at 324. Here, Escalante clearly acted consciously in deciding not to register and did so knowing he had been told failure to register is a felony crime. Escalante's response stating he would expect a warrant the following week shows he was consciously, if not intentionally, setting up the consequences on his failure to register as an offender.
Conclusion
Escalante was told of his requirement to register as an offender due to his misdemeanor sexual battery conviction. Escalante is responsible for his own actions and failed to heed the concerns of his probation officer to register as an offender. The evidence in the light most favorable to the State reflects Escalante consciously failed to register. We affirm his conviction for failing to register as an offender.
Affirmed.