State v. Vessar ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,769
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DAYLEN ROBERT VESSAR,
Appellant.
MEMORANDUM OPINION
Appeal from Shawnee District Court; STEVEN R. EBBERTS, judge. Opinion filed June 11, 2021.
Affirmed.
Jonathan Laurans, of Kansas City, Missouri, for appellant.
Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellee.
Before POWELL, P.J., MALONE and GARDNER, JJ.
PER CURIAM: Daylen Robert Vessar appeals his convictions of two counts of
violating the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. Vessar
claims that (1) the State improperly amended the original indictment by obtaining a
superseding indictment; (2) KORA is unconstitutional to the extent that it allows for a
felony conviction with no mens rea element; (3) the district court erred by failing to give
an instruction on mental culpability; and (4) there was insufficient evidence to support
the convictions. After reviewing the record and the arguments presented by Vessar, we
affirm the district court's judgment.
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FACTUAL AND PROCEDURAL BACKGROUND
In 2014, Vessar was convicted in Atchison County of indecent solicitation of a
child and unlawful voluntary sexual relations with a child. As part of his sentence, and
based on his date of birth, he needed to register as a sexual offender and report to the
registration office in the county of his residence in January, April, July, and October of
every year. Vessar later moved to Shawnee County and needed to report there.
Shawnee County Sheriff's Officer Ashley Previty, who works in the offender
registration unit, had no record of Vessar reporting in January 2017. As a result, a
Shawnee County grand jury indicted Vessar with one count of violating KORA by failing
to report in January 2017. Meanwhile, Vessar also did not report for April 2017 until
May 22, 2017. Vessar later moved to Wyandotte County without notifying the sheriff's
office, and he did not register in Shawnee County in July as he still needed to do.
On August 27, 2018, the district court held a jury trial on the one-count indictment
for Vessar's failure to report in January 2017. We need not summarize the evidence
presented at that trial, but it ended in a hung jury and the district court declared a mistrial.
On February 1, 2019, a Shawnee County grand jury issued a superseding
indictment, charging Vessar with three counts of violating KORA by failing to report in
January 2017, failing to report in April 2017, and failing to notify the sheriff's office of
his move in July 2017.
Vessar moved to dismiss the superseding indictment, arguing that the original
indictment was improperly amended without leave of court in violation of K.S.A. 2017
Supp. 22-3015. The district court denied Vessar's motion to dismiss, finding the statute
addressing amendments to an indictment did not apply to a superseding indictment.
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On June 17, 2019, the district court held a jury trial on the three-count superseding
indictment. Previty testified that an offender must register in Shawnee County if they
live, work, or go to school in the county. She explained that in Shawnee County,
offenders are required to make an appointment before coming in to register. On the date
of the appointment, the offender comes into the sheriff's office and completes the
registration form. Previty acknowledged that there have been a few "rare" occasions
when the sheriff's office has allowed a walk-in to register. Previty also explained that if
an offender wants to move from Shawnee County, the offender must report that fact to
the sheriff's office. This requirement is also stated on the "[a]cknowledgment of the
[o]ffender" form filled out by the offender at each registration.
Previty testified that Vessar did not register in January 2017. She testified that
Vessar next registered on May 22, 2017, and the registration form from that appointment
said, "'for April.'" But Previty explained that Vessar failed to properly register for April
2017 because May 22 is beyond the statutory deadline of April 30. Previty also testified
that Vessar did not register out of Shawnee County in July 2017.
Shawnee County Sheriff's Detective Dustin Carlat testified that he checks for
noncompliance after a registration deadline. Carlat stated that the law does not allow an
offender any grace period for failing to register by the end of the month, but he explained
that he does not start looking at a case as noncompliant until after the 15th of the next
month. Carlat testified that the registration unit does not tell offenders about the informal
grace period. But he acknowledged that if an offender calls to make an appointment
during the last few days of the month and because of scheduling the offender cannot
come into the office until the next week, his office tells the offender that as long as he or
she makes that appointment they will be in compliance.
Carlat testified that Vessar did not report in January 2017 and so he "completed a
case against him." He also testified that Vessar did not report in April 2017. Carlat
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testified about a note on Vessar's May registration. The note stated Vessar came in and
"'knows he missed April'" and when told he also missed January, Vessar "'insisted that he
came in to register in January and a short-haired lady in uniform registered him.'" Carlat
also discovered from the records that in July 2017, Vessar registered in Wyandotte
County but he never registered in Shawnee County.
Vessar testified on his own behalf. He testified that he registered in January 2017.
Vessar stated that he walked into the sheriff's office to let them know he moved to a new
house and the lady, who was not the usual lady he dealt with, also let him register. As for
April, Vessar stated he forgot to register by the end of the month, and he was on a road
trip in Colorado. As he was driving back to Kansas, he was stopped for a traffic offense
and was arrested on the warrant for failing to register in January. Vessar testified that he
was on his way to register when he was arrested and if he had not been arrested, he would
have registered before May 15. But Vessar admitted on cross-examination that Carlat
testified he was arrested on May 16. Vessar stated that he previously had registered late,
for instance in May 2016, and he was not penalized for it.
Vessar testified that he never tried to dodge the registration requirements but that
it was hard to keep up with how he is supposed to register because each county does it
differently. Vessar testified that he moved to Douglas County after he pled guilty to the
2014 case and he registered there but never had to register out of Atchison County.
Within a year, he then moved to Shawnee County. When he moved, he stated that he did
not notify Douglas County that he was leaving. Vessar said his understanding of the
process was that if he moved, he had to register in the new county within three days, but
no one told him to register out of the county he left.
After hearing all the evidence, the jury acquitted Vessar of failing to register in
January 2017 but convicted him of failing to register in April 2017 and failing to register
out of Shawnee County in July 2017. Vessar moved for a judgment of acquittal arguing
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the statute was unconstitutional as a strict liability offense. The district court denied
Vessar's motion. The district court sentenced Vessar to 19 months' imprisonment but
granted probation for 24 months. Vessar timely appealed the district court's judgment.
CHALLENGE TO THE SUPERSEDING INDICTMENT
Vessar first claims the district court erred in denying the motion to dismiss the
superseding indictment. More specifically, Vessar argues that under K.S.A. 2017 Supp.
22-3015(b), the State must seek the district court's permission before amending an
indictment, and the State failed to do that here. Vassar argues that the appropriate remedy
for the defective indictment is dismissal of the charges against him.
The State argues that adding counts two and three of the superseding indictment
was "essentially a joining, or consolidation, of two additional counts." The State then
argues that because the three crimes could have been joined in a single indictment under
K.S.A 22-3202(1), the district court correctly denied Vessar's motion. The State asserts
that even if the superseding indictment were erroneous, it did not prejudice Vessar.
This court exercises unlimited review over the district court's denial of a motion to
dismiss on a strictly legal ground. State v. Garcia, 282 Kan. 252, 260, 144 P.3d 684(2006) (examining denial of motion to dismiss for alleged violation of speedy trial
statute); State v. Rickerson, 47 Kan. App. 2d 648, 654, 276 P.3d 240 (2012) (examining
denial of motion to dismiss as sanction for alleged noncompliance with law). To the
extent that resolution of this issue requires statutory interpretation, our review is
unlimited. State v. Alvarez, 309 Kan. 203, 205, 432 P.3d 1015 (2019).
K.S.A. 2017 Supp. 22-3015 addresses the amendment of an indictment and states
in part:
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"(a) Matters of form, time, place, names. At any time before or during trial, the
court may, upon application of the people and with notice to the defendant and
opportunity for the defendant to be heard, order the amendment of an indictment with
respect to defects, errors or variances from the proof relating to matters of form, time,
place and names of persons when such amendment does not change the substance of the
charge, and does not prejudice the defendant on the merits. Upon ordering an
amendment, the court, for good cause shown, may grant a continuance to provide the
defendant adequate opportunity to prepare a defense.
"(b) Prohibition as to matters of substance, exception.
(1) An indictment shall not be amended as to the substance of the offense
charged, except
(2) The court may, upon application of the people and with notice to the
defendant and opportunity for the defendant to be heard, order the substance of an
indictment to be amended for the limited purpose of effecting a change of plea by the
defendant pursuant to a plea agreement reached between the defendant and the
prosecuting attorney. The provisions of this paragraph shall apply only to an indictment
found by a grand jury impaneled pursuant to subsection (a) or (b) of K.S.A. 22-3001, and
amendments thereto, and shall not apply to an indictment found by a grand jury
impaneled pursuant to subsection (c) of K.S.A. 22-3001, and amendments thereto."
Vessar is correct that an indictment can be amended only in limited circumstances
and the substance of an offense charged shall not be amended without leave of court.
Vessar is also correct that the reasons for limiting the amendment of an indictment are
because an indictment is issued by a grand jury, not the court or the State. See State v.
Carpenter, 228 Kan. 115, 118, 612 P.2d 163 (1980) (mentioning that under the federal
rules, there is a longstanding rule that an indictment may not be amended because the
charge is put forth by a grand jury not the court or the prosecutor).
But Vessar's argument fails as it relies on the faulty assertion that the grand jury
issuing a superseding indictment after a mistrial is equivalent to the State seeking to
amend the indictment. The grand jury originally indicted Vessar with one count of
violating KORA by failing to report in January 2017. After the mistrial, the grand jury
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issued a superseding indictment charging Vessar with three counts of violating KORA.
The first count was substantively identical to the original indictment charging Vessar
with failing to report in January 2017. The superseding indictment added two more
counts for Vessar's failure to report in April 2017 and July 2017.
In denying the motion to dismiss, the district court reasoned that the superseding
indictment did not amend the first indictment but took the place of it. The district court's
reasoning is persuasive. The superseding indictment was not the product of the State, or
as the statute puts it, "the people," seeking to amend "the substance of the offense
charged" in the original indictment. Instead, the grand jury issued a new, superseding,
indictment. Thus, contrary to his assertion, the superseding indictment issued by the
grand jury does not implicate K.S.A. 2017 Supp. 22-3015, and the district court did not
err in denying his motion to dismiss on this basis.
In concluding this issue, Vessar incidentally asserts that because no Kansas statute
expressly allows for superseding indictments, they are pure legal fiction. But he does not
support his conclusory assertion that superseding indictments are impermissible with any
authority or further argument. As a result, we decline to address the propriety of a
superseding indictment as Vessar only incidentally raises this argument. See State v.
Lowery, 308 Kan. 1183, 1231, 427 P.3d 865 (2018) (stating, "'[a] point raised incidentally
in a brief and not argued [therein] is deemed abandoned'").
CONSTITUTIONAL CHALLENGE TO THE KORA VIOLATION
Next, Vessar claims that K.S.A. 2020 Supp. 22-4903, the statute addressing
violations of KORA, is unconstitutional to the extent that it allows for a felony conviction
with no mens rea element. More specifically, he argues that allowing a KORA violation
to be a strict liability offense is unconstitutional because it "nullifies" a defendant's right
to argue a mistake of fact defense. Vessar then argues that the strict liability nature of the
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offense is unconstitutional as applied in his case because it was uncontroverted that the
Shawnee County offender registration unit had a "grace period" and, because of the grace
period, he did not know he was committing a crime when he registered late.
The State counters that the authority Vessar relies on to establish his claim is
distinguishable. The State also asserts a "harmless error" analysis because the facts do not
show that Vessar could advance a mistake of fact defense to the charges against him.
A violation of KORA is a strict liability offense, requiring no mens rea element.
K.S.A. 2020 Supp. 21-5203(e). Vessar asserts the strict liability nature of his offenses
renders KORA unconstitutional. A statute's constitutionality is a question of law subject
to unlimited review. State v. Gonzalez, 307 Kan. 575, 579, 412 P.3d 968 (2018).
We find that Vessar is not entitled to any relief on this claim for three reasons.
First, Vessar's brief does not adequately frame or develop a constitutional challenge to
the provisions of KORA as applied to him. Vessar only mentions a constitutional right at
the beginning of his argument: "The Fifth Amendment to the United States Constitution
guarantees citizens the right to notice of what precisely constitutes a crime." But he never
references the Fifth Amendment, or any other constitutional provision, during the rest of
his argument, nor does he cite a constitutional test to be applied to his case. Instead, he
generally complains that because of the facts of his case—as he characterizes them—he
had no notice that he committed a crime by failing to properly report for registration in
April 2017 and July 2017. Issues not adequately briefed are considered waived or
abandoned. State v. Salary, 309 Kan. 479, 481, 437 P.3d 953 (2019).
The second reason Vessar's claim fails is because his argument relies on a faulty
mischaracterization of the facts. Vessar's entire argument, on this issue and the remaining
issues in his brief, relies on his assertion that he "could not be said to have known he was
committing a crime" because "he was explicitly told that strict compliance with deadlines
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in KORA were not mandatory." He also asserts that he did not "kn[o]w of his status as a
KORA violator after Deputy Previty told him that he was fine to register . . . late, during
her imprecise 'grace period.'" In support of his assertions, he cites Previty's testimony,
which he summarizes as establishing that "the 'grace periods' were less than precise."
But this summary conflicts with the evidence. As the State points out, there is no
evidence that Previty or Carlat ever told Vessar before his violations that compliance
with the registration deadlines was not mandatory. In fact, Vessar identifies no one who
told him about a 15-day grace period. The testimony Vessar points to at best shows that
the Carlat did not start his noncompliance list until the 15th of the next month. But Carlat
testified that his unit does not tell offenders about the informal grace period. Instead, if an
offender calls to make an appointment during the last few days of the month and because
of scheduling the offender cannot come into the office until the next week, the office tells
the offender that as long as he or she makes that appointment they will be in compliance.
There is no evidence in the record that Vessar was "explicitly told that strict
compliance with the deadlines" was not mandatory. At one point, Vessar testified that
when he registered on May 22, Previty told him that he was okay for April, but that
alleged statement was after the violation had occurred so Vessar could not have
justifiably relied on it. Vessar also testified that he registered late in May 2016 and was
not penalized for it. But this evidence does not establish that anyone in the sheriff's office
ever told Vessar that he did not need to comply with the registration deadlines.
What's more, to the extent that there is an informal grace period for an offender to
report, the record showed that it lasted until the 15th of the next month. Vessar did not
register for April 2017 until May 22, 2017, well outside any alleged grace period. Vessar
also asserted that he was on his way to register for April when he was arrested and if he
had not been arrested, he would have registered before May 15. But he admitted on cross-
examination that the evidence showed he was arrested on May 16. Because the evidence
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does not support Vessar's underlying claim that he had a valid mistake of fact defense to
the charges against him, Vessar lacks standing to bring a constitutional challenge to the
strict liability nature of his KORA violations. See State v. Stoll, 312 Kan. 726, 734, 480
P.3d 158 (2021) (holding defendant lacked standing to challenge strict liability nature of
KORA violation when the evidence showed she knew she had a duty to register and she
failed to successfully show that she lacked a culpable mental state).
The third reason Vessar's claim fails is because even if we reach the merits of the
claim, he cites no persuasive authority to establish how the strict liability of KORA is
unconstitutional as applied to him. In support of his claim, Vessar first cites Rehaif v.
United States, 588 U.S. ___, 139 S. Ct. 2191, 204 L. Ed. 2d 594 (2019), arguing that like
Rehaif, he did not "kn[o]w of his status as a KORA violator after Deputy Previty told him
that he was fine to register . . . late, during her imprecise 'grace period.'" But his argument
fails because, as discussed above, the alleged grace period was not imprecise, law
enforcement did not tell him he had a grace period to register late, and even if there were
a grace period, the record establishes that Vessar registered outside that period.
Rehaif is also distinguishable and irrelevant to the issue at hand. In Rahaif, the
United States Supreme Court addressed "the scope of the word 'knowingly'" in a federal
statute that prohibited aliens who were unlawfully in the United States from possessing a
firearm, which when "'knowingly violate[d]'" led to 10 years imprisonment. 139 S. Ct. at
2194. The Court reasoned that when the statutory text includes the term "'knowingly'" it
is generally read as applying to all the later elements of the crime. 139 S. Ct. at 2196. The
Court then found that it was the defendant's status as an alien unlawfully in the United
States, along with his conduct, that makes the behavior wrongful. 139 S. Ct. at 2196. The
Court held that under the statute, the government had to prove that the defendant knew
his status and that he knew he possessed the firearm. 139 S. Ct. at 2200.
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A KORA violation is not equivalent to the statute at issue in Rahaif. First, if there
is to be any status element to KORA it would be the status of being an offender who had
to register, not an offender who failed to register. Second, and more importantly, Rahaif
did not address a strict liability offense. The Court in Rahaif explicitly acknowledged that
in strict liability cases the Court has declined to read a mens rea requirement into the law.
139 S. Ct. at 2197. Thus, Rahaif does not support Vessar's argument.
The next part of Vessar's argument is less than clear. But he seems to assert that
assuming this court adopts a knowledge requirement, we should find that knowledge
includes "'circumstances surrounding that person's conduct . . . when such person is
aware that such person's conduct is reasonably certain to cause the result.'" He then
argues that because Previty testified to a "grace period," the statute must be read as
requiring that he also knew Previty could not alter or extend the statutory deadlines. But
as discussed above, Vessar has not established that this court should read a knowledge
requirement into the statute. And, again, the record does not support Vessar's assertion
that Previty told him before the fact that he could register on May 22, 2017, for April
2017. Thus, Vessar's citation to State v. Krzeszowski, 106 Wash. App. 638, 645-46, 24
P.3d 485 (2001), for the proposition that a person has no notice that a crime has been
committed when the person relies on an "'affirmative misrepresentation of the law by [a]
government official'" is irrelevant.
Vessar then cites Lambert v. California, 355 U.S. 225, 78 S. Ct. 240, 2 L. Ed. 2d
228 (1957), for the proposition that "actual knowledge of duty to register is required for
[a] conviction to stand [under the] Fifth Amendment." But Lambert is distinguishable in
that Lambert had no notice at all that she needed to register after being convicted of a
felony. 355 U.S. at 228. Vessar admitted that he knew he had to register in April 2017,
but he simply "forgot" until he was returning from his trip to Colorado.
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Finally, Vessar argues that his conviction for failing to register out of Shawnee
County in July 2017 must be reversed because the jury was not "permitted to consider
whether his technical non-compliance . . . w[as] intentional, or instead excused by the
modifications of the KORA registration rules by Deputy Previty and Detective Carlat."
But Vessar does not point to any assertion from Previty or Carlat that he did not have to
register out of Shawnee County when he moved without giving any notice. Instead, the
evidence showed that the requirement of giving notice of moving was stated in the
"[a]cknowledgment of the [o]ffender" form filled out at each registration.
In sum, Vessar's constitutional claim fails because (1) he does not frame an actual
constitutional challenge or identify a constitutional test for this court to apply; (2) he
relies on a mischaracterization of the facts and based on the actual evidence lacks
standing to bring his constitutional claim; and (3) he provides no persuasive and relevant
authority to support his claim. Based on the record and the arguments presented in
Vessar's brief, we decline to grant him any relief on this claim.
CLAIMED INSTRUCTIONAL ERROR
Next, Vessar claims that even if this court does not agree with his constitutional
challenge, based on the "unique factual circumstances of this case" the district court erred
by failing to give an instruction on mental culpability. The State counters that the district
court did not err because intent is not an element of a KORA violation.
This court employs a multistep process to review claims of jury instruction error.
First, this court must decide whether the issue was preserved. Second, it must decide
whether an error occurred by determining whether the instruction was legally and
factually appropriate. In addressing the first two steps, this court exercises unlimited
review. State v. Williams, 308 Kan. 1439, 1451, 430 P.3d 448 (2018). If error is found,
this court must then determine whether the error is reversible. 308 Kan. at 1451.
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Vessar objected to the lack of an instruction on mental culpability and requested
that an instruction be given at trial. The district court denied Vessar's request, finding
KORA violations are strict liability crimes. Thus, Vessar has preserved this challenge.
But Vessar fails to establish that an instruction on mental culpability was legally
appropriate. As discussed above, a KORA violation is a strict liability crime requiring no
culpable mental state. See K.S.A. 2020 Supp. 21-5203(3). Thus, giving an instruction on
mental culpability would contradict the law and would not be legally appropriate. For this
reason alone, Vessar's claimed instructional error fails.
SUFFICIENCY OF THE EVIDENCE
Finally, Vessar claims there was insufficient evidence to support his convictions.
Vessar's only argument is that the evidence did not show that he intentionally failed to
register. The State asserts there was sufficient evidence to support Vessar's convictions
because intent is not an element of the crimes.
"'When sufficiency of the evidence is challenged in a criminal case, the standard
of review is whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
resolve evidentiary conflicts, or make witness credibility determinations.' [Citation
omitted.]" State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).
Vessar concedes that if failure to register is a strict liability crime, then there was
sufficient evidence to support his convictions. As discussed above, failure to register as
required by KORA is a strict liability crime and does not require intent. Because failure
to register is a strict liability crime, Vessar's sufficiency of the evidence argument fails.
Affirmed.
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