State v. Huey ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,411
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DARNELL LEE HUEY,
Appellant.
MEMORANDUM OPINION
Appeal from Shawnee District Court; DAVID DEBENHAM, judge. Opinion filed October 9, 2020.
Affirmed.
Jennifer C. Bates, of Kansas Appellate Defender Office, for appellant.
Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellee.
Before ARNOLD-BURGER, C.J., HILL and ATCHESON, JJ.
PER CURIAM: Darnell Lee Huey appeals his conviction for failing to report as
required by the Kansas Offender Registration Act. He claims that insufficient evidence
supports his conviction because the State did not prove that he resided, worked, or
attended school in Shawnee County during the month the State alleged he failed to report.
Given our standard of review, the record compels us to hold that that a rational fact-finder
could have found the defendant guilty beyond a reasonable doubt. Thus, we affirm his
conviction.
1
In February 2018, the State charged Huey in Shawnee County District Court with
one count of violating the Act. The Act requires certain offenders to register with local
law enforcement agencies and it also imposes various reporting duties upon those
offenders. See K.S.A 2019 Supp. 22-4905. The State alleged that Huey had to register
because he had been convicted of robbery with a deadly weapon in a case in Shawnee
County. The law in effect when Huey committed that robbery—K.S.A. 2010 Supp. 22-
4902(a)(7)—required anyone convicted of a felony to register if the court found that a
deadly weapon had been used.
After serving his prison sentence for the robbery and another crime, Huey was
released from prison in early June 2017. After his release, he registered with the Shawnee
County Sherriff's Office. According to K.S.A. 2019 Supp. 22-4905(b), after that initial
registration, Huey had to report to the law enforcement agency during his birthday month
and then every third, sixth, and ninth month after that.
Since Huey was born in February, he had to report in February, May, August, and
November. Huey reported in September 2017 instead of August. After that, the State filed
this case because Huey had failed to report in November 2017.
The case was submitted to a jury. The only witness the State called was Ashley
Previty, a sheriff's employee in charge of registering drug, violent, and sex offenders in
Shawnee County. She was the custodian of the offender registration records.
Previty testified that Huey's registration was required because of his robbery
conviction. The State then admitted Huey's two offender registration forms from when he
reported in June and September 2017. Both forms were signed by Huey and witnessed by
Previty. She recognized Huey and identified him for the jury. On each form, Huey listed
his address as SW Lincoln Street in Topeka. Previty stated that Huey did not file a
registration form for November 2017.
2
On redirect examination, Previty told the jury that if an offender who had been
registering in Shawnee County moved to another county, that offender must "check out"
with her office and register in the new county within 30 days of checking out of Shawnee
County. Huey never checked out of Shawnee County. Previty also testified that she did
not always know when an offender registered someplace else.
Finally, the State introduced the journal entry from Huey's robbery conviction
which showed that the court checked the box for a deadly weapon finding. Huey did not
introduce any evidence.
The jury found Huey guilty. The court sentenced him to 37 months in prison.
Huey raises one issue on appeal—whether sufficient evidence supports his
conviction for failing to report in November 2017. Stated simply, Huey argues that the
State presented no evidence of where he lived, where he worked, or where he went to
school. Thus, in his view, the State has not proved that he needed to register in November
2017.
Huey does not dispute that he had to register under the Act, nor does he dispute
that he did not report to the Shawnee County Sherriff's Office in November 2017.
Sufficient evidence supports a conviction on appeal when, with the evidence
viewed in a light most favorable to the prosecution, the appellate court is convinced that a
rational fact-finder could have found the defendant guilty beyond a reasonable doubt.
State v. Williams, 299 Kan. 509, Syl. ¶ 1, 324 P.3d 1078 (2014), overruled on other
grounds by State v. Dunn, 304 Kan. 733, 375 P.3d 332 (2016).
Our review of the record begins with recognizing what the law demanded of Huey.
After that, we examine the evidence presented to the jury.
3
The Act in K.S.A. 2019 Supp. 22-4905(a) is specific about where and when an
offender must register. An offender required to register must report at the law
enforcement agency in the county where they reside, work, or attend school, or where
they intend to reside, work, or attend school. And that offender must do so in person
within three business days of coming into a county. The Act in K.S.A. 2019 Supp. 22-
4905(b) also requires a registered offender to report in person during the month of the
offender's birth and every third, sixth, and ninth month afterward.
Considering those legal requirements, the State had to prove beyond a reasonable
doubt that Huey:
• was required by law to register as an offender;
• had to register in Shawnee County, Kansas; and
• failed to register in November 2017.
Given our standard of review, we hold the State has met its burden.
The two registration forms admitted into evidence at trial show that Huey resided
in Shawnee County. Huey listed the same Topeka address on his February 2017 and June
2017 registration forms. Huey signed each of those forms and acknowledged on each that
he had to report any change or termination of residence within three days to the agency
he had last registered with. Here, that would be the Shawnee County Sherriff's Office.
Paragraph 5 on each form advises that since Huey was born in February, he had to report
in February, May, August, and November.
Previty testified that Huey had never reported a change in residence. Huey had
been residing in Shawnee County and did not report moving. She testified he did not
report in November 2017.
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Huey had not reported a change of address, an intent to move, nor a change of
jurisdictions within three days as required by the law. Huey had acknowledged those
requirements on each form. Thus, a rational juror could infer from these circumstances
that he still resided in Shawnee County. That is especially true when the evidence is
viewed in the State's favor, as our standard of review requires. A conviction can be based
entirely on circumstantial evidence. See State v. Brooks, 298 Kan. 672, 689, 317 P.3d 54(2014).
Affirmed.
***
ATCHESON, J., dissenting: This case tests the limits of circumstantial evidence in
supporting a criminal conviction when that evidence topples from reasonable inference to
unreasonable speculation. The State may not rely on speculation to convict defendants
and, thereby, deprive them of their liberty. But the State did no more than that in
prosecuting Defendant Darnell Lee Huey in this case. I, therefore, respectfully dissent
and would reverse Huey's conviction for failing to report under the Kansas Offender
Registration Act (KORA), K.S.A. 22-4901 et seq., for insufficient evidence and, in turn,
vacate his sentence and enter a judgment of acquittal.
Circumstantial evidence trades on the idea that proved facts often permit the
reasoned inference of other facts relevant to whatever the disputed issue may be in a
given case. The idea is, of course, perfectly sound stated as an abstract proposition. See
State v. Thach, 305 Kan. 72, 84, 378 P.3d 522 (2016) (even gravest crimes may be
proved with only circumstantial evidence). But all circumstantial evidence is not created
equal. Rather, it is highly variable depending (naturally) on the particular circumstances
and just what proposition is supposed to be inferred from those circumstances. So
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circumstantial evidence exists on a continuum from remarkably reliable to quite
unreliable.
Illustrative of the reliable end of the continuum is the law school chestnut: A
farmer looks out the back window early one morning to a blanket of fresh snow and sees
rabbit tracks into the left side of the hollow log in the yard and unbroken snow on the
right side. From those circumstances, the farmer may reasonably conclude the rabbit is in
the log, even though he or she hasn't seen the rabbit. See State v. Peterson, No. 111,693,
2015 WL 4716295, at *3 (Kan. App. 2015) (unpublished opinion); State v. Poole, 116
Ohio App. 3d 513, 525, 688 N.E.2d 591 (1996) (rabbit tracks in fresh snow properly used
in jury instruction as example of circumstantial evidence); Kelso, Final Report of the
Blue Ribbon Commission on Jury System Improvement, 47 Hastings L.J. 1433, 1513
(July-August 1996) (noting prevalence of jury instructions referring to rabbit tracks in
fresh snow as illustration of circumstantial evidence). Well toward the other end of the
continuum lies a more real-world example. If a person had been convicted of simple
possession of marijuana in college 15 years ago, would it be reasonable to infer from that
circumstance that he or she presently uses marijuana or may be in possession of
marijuana? The inference might be drawn, but the law typically would not impute much,
if any, evidentiary value to it. See State v. Hicks, 282 Kan. 599, 616, 147 P.3d 1076(2006); State v. Savage, No. 112,882, 2015 WL 8590269, at *3 (Kan. App. 2015)
(unpublished opinion).
There is a line somewhere along that continuum that divides reasonable
evidentiary inferences from impermissible speculation. But the line defies a workable
definition, and placing a particular set of proved facts and inferred facts on one side or
the other entails a case-specific exercise that becomes quite difficult close to the line. See
State v. Brown, 46 Kan. App. 2d 210, 216-17, 262 P.3d 1055 (2011) (Atcheson, J.,
dissenting) ("Almost anytime the law draws a line, it may become difficult to distinguish
between two sets of circumstances falling close to—but on opposite sides of—that line.
6
They probably look a lot alike."). But this is not a case that teeters on the boundary
between reasonable circumstantial evidence sufficient to support a conviction and
impermissible speculation that does not. It falls well over the line on the too speculative
side. And that's true taking the evidence in the best light for the State, as we are obligated
to do on appellate review. See State v. Jenkins, 308 Kan. 545, Syl. ¶ 1, 422 P.3d 72(2018).
Here, there is no dispute Huey had to register and report under KORA as a violent
offender after his release from prison in 2017. Offenders must register four times a year
at the sheriff's office in the counties where they live, work, and attend school. K.S.A.
2019 Supp. 22-4905(b)(2). Huey duly reported to the Shawnee County Sheriff's Office
for June 2017 and again on September 8, 2017. Each time, he listed the same residential
address in Topeka on the reporting form and indicated he was unemployed. Huey was
obligated to report in November 2017. He did not do so with the Shawnee County
Sheriff's Office.
In 2018, the State charged Huey with failing to report in November 2017, and the
case was delayed for procedural reasons that are immaterial to the appeal. A jury heard
the case and convicted Huey last year. The State called Ashley Previty, who manages the
offender registration program for the Shawnee County Sheriff's Office, as its only
witness. Previty testified that Huey appeared at her office and filled out the reporting
forms for June and again in early September. They both signed the forms, and the State
introduced them as exhibits during the trial. Previty told the jurors that Huey did not
show up to register during November. Huey neither testified in his own defense nor
offered any other evidence.
To prove its case, the State had to present evidence that would permit jurors to
fairly conclude beyond a reasonable doubt that Huey lived in Shawnee County on
November 30, 2017—the last day he could report in conformity with KORA—and that
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he failed to so report. If Huey no longer lived in Shawnee County, he had no obligation to
report there and (obviously) could not be convicted for failing to do so.
The evidence, at best, showed that Huey lived in Topeka as of September 8. But
that circumstantial evidence was insufficient to support a reasonable inference rather than
mere speculation that he still lived in Shawnee County nearly three months later. The
remainder of the evidence established no other circumstance anchoring Huey in Shawnee
County. He was unemployed, so he had no job to keep him there. The State offered no
evidence about the type of residence Huey had in Topeka. It may have been a furnished
room that rented by the week or the month. Or he might have been living with relatives in
a home they owned. But a conclusion or inference about those particular circumstances
would have been pure speculation. The State didn't have an investigator go to the address
in November 2017 to see if Huey still lived there or otherwise contact the owner to get a
fix on Huey's whereabouts then. I presume Huey had a parole officer, since he had only
recently been released from prison. But he or she didn't testify.
The circumstantial evidence the State offered to establish Huey lived in Shawnee
County in late November 2017 traded on speculation with too little tangible connection
between the proved facts (where Huey lived in June and early September) and the legally
relevant fact to be inferred (where he lived at the end of November). The lapse of time
without something more to tie Huey to Shawnee County as his continuing place of
residence cannot support the charged violation of KORA. Huey's conviction and the
resulting 37-month sentence should be set aside for insufficient evidence.
The majority averts that outcome with what it treats as a "Eureka!" revelation at
the end of the opinion. The forms Huey filled out when he did report recited various
obligations he had under KORA, including informing the Shawnee County Sheriff's
Office within three days if he moved. See K.S.A. 2019 Supp. 22-4905(h). And Previty
testified she received no such notification from Huey. The majority says that's additional
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and persuasive circumstantial evidence Huey continued to live in Shawnee County.
Except that it isn't. Huey's failure to report a change of residence and his failure to report
to the Shawnee County Sheriff's Office in November 2017 is equally consistent with his
having moved from the county sometime after September 8 and then ignoring his
obligation to report the move. But in those circumstances, he would have had no duty to
report in Shawnee County in November as the place where he resided.
The majority has no reasoned basis to assume Huey violated his duty to report in
his county of residence rather than his duty to report a change in residence (out of
Shawnee County). To pick one over the other on this record is simply arbitrary in the
same way flipping a coin would be. An arbitrary conclusion isn't to be found anywhere
on the continuum of circumstantial evidence. And it is inherently infirm. To be sure, had
Huey failed to promptly report a change in residence he would have violated KORA and
could have been prosecuted for that violation. But he wasn't—or at least he wasn't in this
case.
In short, Huey's failure to report a change in address doesn't tighten up or
otherwise buttress the impermissibly speculative inferences the State's case depends
upon. The conviction should be reversed, the sentence vacated, and a judgment of
acquittal should be entered.[*]
[*]In many insufficient evidence cases, the jurors have gotten it wrong with their
guilty verdicts. But that's not invariably so, especially if they have been materially
misguided by the jury instructions. This is such a case. The jury instruction stating the
elements of the charged KORA violation omitted the critical one—that Huey lived in
Shawnee County in November 2017. Based on the jury instruction, the jurors simply had
to find that Huey failed to report in Shawnee County in November 2017 to return a guilty
verdict. That evidence was undisputed, but it was legally inadequate to convict Huey,
something the jurors would not have known. The instructional error is, however, beside
the point in our weighing of the legal sufficiency of the evidence to support a conviction.
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