Opinion
No. 108,277.
2013-08-9
STATE of Kansas, Appellee, v. Jamal D. SINGLETON, Appellant.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge. Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appelles.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appelles.
Before BRUNS, P.J., HILL, J., and ERNEST L. JOHNSON, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM:
A Sedgwick County jury found Jamal D. Singleton guilty of a violation of the Kansas Offender Registration Act, K.S.A. 22–4901 et seq. On appeal, Singleton contends that there was insufficient evidence presented at trial to support the jury's verdict and that the district judge committed judicial misconduct based on a comment he made in front of the jury. Based on a review of the evidence in the light most favorable to the State, we conclude that there was sufficient evidence to support Singleton's conviction beyond a reasonable doubt. Further, we conclude that there was no judicial misconduct. Thus, Singleton's conviction is affirmed.
Facts
Following a second adjudication as a juvenile offender, Singleton was placed in a residential facility by the Juvenile Justice Authority on August 1, 2011. About 1 1/2 months later—when he was 18 years old—Singleton eloped from the residential facility around 11:40 p.m. on September 20, 2011. He was arrested 9 days later.
Because of his prior adjudication as a juvenile offender, Singleton was required to register under the Offender Registration Act. During the 9 days between his elopement and arrest, however, Singleton failed to contact the residential facility, and he failed to register a new address with the sheriff's office. As a result, the State charged Singleton with violating the Offender Registration Act for failing to register within 3 days following a change or termination of his residence.
A jury trial was held on April 17, 2012. During the direct examination of Singleton's senior youth counselor at the residential facility, the following exchange occurred:
“[PROSECUTOR:] And his residency there continued from August 1, 2011, through when he terminated his residence on September
“[DEFENSE COUNSEL:] Objection ... to the use of the word terminated. I believe that's an issue of fact for the jury to determine, not ... something for [the Prosecutor] to continue to testify to through questioning.
“THE COURT: I'm not sure what other term can be used. I'm going to overrule the objection.”
Nevertheless, after the court's ruling on the objection, the prosecutor did not use the word “terminated” again when questioning the witnesses.
Following the presentation of the evidence, the jury found Singleton guilty of violating the terms of the Offender Registration Act. Thereafter, the district judge sentenced him to 34 months' imprisonment.
Analysis
Sufficiency of Evidence
On appeal, Singleton contends there was insufficient evidence to support his conviction. When the sufficiency of evidence is challenged in a criminal case, we must look at all the evidence in a light most favorable to the prosecution to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374–75, 277 P.3d 1091 (2012).
In determining whether there is sufficient evidence to support a conviction, we are not to reweigh the evidence or the credibility of witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011). It is only in rare cases where the testimony is so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. See State v. Matlock, 233 Kan. 1, 5–6, 660 P.2d 945 (1983).
Here, Singleton was charged with violating K.S.A.2011 Supp. 22–4905(g). Furthermore, the jury was appropriately instructed that it order to find Singleton guilty of an Offender Registration Act violation, it must find:
“1. That the defendant had been adjudicated as a juvenile offender that requires him to register as an offender under the Kansas Offender Registration Act;
“2. That the defendan: terminated his residential address and failed to register in person with the Sheriff of Sedgwick County within three days; and
“3. That this act occurred on or about the 23rd day of September, 2011, in Sedgwick Country, Kansas.”
Singleton argues that no reasonable juror would have been able to conclude that he was guilty of an offender registration violation because no evidence was presented that the Juvenile Justice Authority terminated his residency or that he intended to terminate his residency. But based on our review of the evidence in the light most favorable to the prosecution, we find there was sufficient evidence to support Singleton's conviction beyond a reasonable doubt.
At the time of his elopement from the residential facility, Singleton was subject to the Offender Registration Act, which imposed upon him the obligation to register his new residential address with the sheriff's office if he changed or terminated his registered address. Based on his elopement from the residential facility without permission and on his failure to return before being arrested 9 days later, the jury could reasonably conclude beyond a reasonable doubt that Singleton terminated his residential address around 11:40 p.m. on September 20, 2011.
A review of the record also reflects that Singleton acknowledged that he was aware of his obligation to register when he signed an offender registration form on August 4, 2011. Nevertheless, it is clear from the record that Singleton failed to register a new residential address within 3 days as required by K.S.A.2011 Supp. 22–4905(g). Thus, we find that there is sufficient circumstantial evidence in the record upon which a jury could have found Singleton guilty of failing to register beyond a reasonable doubt. See State v. Ward, 292 Kan. 541, 581, 256 P.3d 801 (2011) (a conviction of even the gravest offense can be based entirely on circumstantial evidence), cert. denied132 S.Ct. 1594(2012). Judicial Misconduct
Singleton also contends that a comment made by the district judge during trial rises to the level of judicial misconduct. Our review of allegations of judicial misconduct is unlimited. See State v. Kemble, 291 Kan. 109, 113, 238 P.3d 251 (2010). Moreover, the party alleging judicial misconduct bears the burden of showing prejudice. 291 Kan. at 113.
Singleton argues that the district judge's comment, “I'm not sure what other term can be used,” in response to defense counsel's objection to the prosecutor's use of the word “terminated” constituted misconduct. Specifically, he argues that the judge's comment took an essential element of the crime charged—that Singleton terminated his residential address and failed to register in person—out of the hands of the jury. Essentially, Singleton suggests that the judge's comment was the equivalent of a directed verdict on this element. We disagree.
An allegation of judicial misconduct is reviewable on appeal despite the lack of a contemporaneous objection when a defendant claims his or her right to a fair trial was violated. Kemble, 291 Kan. at 113. In determining whether a judge's comment rises to the level of judicial misconduct, we must review the particular facts and circumstances surrounding the remark. Furthermore, the mere possibility of prejudice from a judge's remark is not sufficient to overturn a verdict. State v. Miller, 274 Kan. 113, 118, 49 P.3d 458 (2002).
For judicial misconduct to require reversal it must affirmatively appear that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party. State v. Hamilton, 240 Kan. 539, 546, 731 P.2d 863 (1987); see Miller, 274 Kan. at 119 (judicial misconduct occurred where trial judge repeatedly expressed belief that a witness was lying; made sarcastic remarks; recommended counsel proceed to another witness because the current witness was unbelievable; verbalized his inability to follow the witnesses' explanations; disregarded the testimony of a defense witness as being meaningless; and commented inappropriately in making his finding of guilt); State v. Hoyden, 281 Kan. 112, 116–17, 130 P.3d 24 (2006) (judicial misconduct occurred where trial judge repeatedly interrupted counsel and made impatient and rude remarks to prosecution, defense counsel, and several witnesses). But see State v. Grissom, 251 Kan. 851, 929–31, 840 P.2d 1142 (1992) (no judicial misconduct where trial judge commented during voir dire that anyone who had heard about the case via the media would believe “quite naturally [the] evidence points toward guilt”); State v. Mayes, 33 Kan.App.2d 9, 13–15, 98 P.3d 294 (2004) (no judicial misconduct where trial judge prompted and assisted State during examination of witnesses).
Here, we conclude that the district judge's comment does not rise to the level of judicial misconduct. As indicated above, there is substantial evidence in the record upon which the jury could have found that Singleton terminated his residential address when he eloped from the residential facility late one night without permission. Moreover, our review of the record reveals that the jury was properly instructed and understood its obligation to review the evidence in light of the instructions. In fact, based on a question asked by the jury during deliberations, it is apparent that the jury did not predetermine Singleton's guilt based on the judge's comment.
It is important to remember that it is Singleton's burden to show that judicial misconduct prejudiced his substantial rights to a fair trial, and he has not met this burden. See Miller, 274 Kan. at 118. At most, Singleton has only shown the mere possibility of prejudice, which is a not ground for reversal. See 274 Kan. at 118. Thus, we conclude that the district judge's comment does not constitute judicial misconduct.
Affirmed.