Opinion
Editorial Note:
This decision has been designated as "Supreme Court of Kansas Decisions without Published Opinions." in the Pacific Reporter. See KS R S AND A CTS RULE 7.04
Appeal from Shawnee District Court; Nancy E. Parrish, Judge.
Michael E. Francis, of Topeka, argued the cause and was on the brief for appellant.
Jason E. Geier, assistant district attorney, argued the cause, and Chadwick J. Taylor, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.
MEMORANDUM OPINION
PER CURIAM:
Timothy W. Spidel directly appeals his conviction for violating K . S.A. 22-4904(b), which is a provision of the Kansas Offender Registration Act, K.S.A. 22-4901 et seq. Spidel raises only one issue on appeal. He claims that K.S.A. 22-4904(b) is unconstitutionally vague, requiring this court to reverse his conviction.
FACTUAL AND PROCEDURAL OVERVIEW
Spidel was subject to the requirements of the Registration Act because of a prior conviction for aggravated sexual battery. On June 18, 2008, the Offender Registration Unit of the Kansas Bureau of Investigation (KBI) notified Deputy Emily Adams of the Shawnee County Sheriff's Department that a noncompliant offender was living at 5724 SW Quail Cove Circle, Topeka, Shawnee County, Kansas. That information had apparently originated with authorities in Riley County where Spidel faced similar charges related to his failure to comply with the Registration Act.
Deputy Adams spoke with Spidel by telephone but was unable to arrange a meeting. The deputy did meet with Patti Bishop, owner of the Quail Cove residence. Bishop said that she and Spidel were working together on rental properties in Shawnee County and that Spidel stayed at the Quail Cove residence three to four nights per week. During a subsequent videotaped interview, Bishop estimated that Spidel had stayed at the Quail Cove residence five nights per week from October 2007 to July 2008. She related that Spidel had clothing, furniture, and other personal belongings at the Quail Cove residence, that he used the residence as his work address, and that he received mail at that location.
Spidel met with Deputy Adams at the law enforcement center on June 20, 2008, and completed a registration form, in which he listed a house at 726 Thurston, Manhattan, Riley County, Kansas, as his residence. Spidel also listed six addresses in Shawnee County as his worksites.
Spidel was charged with violating the reporting requirements of K .S.A. 22-4904(b). He waived his right to a jury trial but contested the charge at a bench trial. Spidel testified that he was present in Shawnee County as a result of his relationship with Bishop. He said they were partners in the business of buying, fixing, and renting houses with a goal to " build a little nest egg and get married." Spidel acknowledged that he and Bishop began living together at the Quail Cove address in October 2007, and that he stayed at that residence approximately " four or five" days a week. He also acknowledged that the Quail Cove address was his place of business and that since January 2008 he had listed the address on his general contractor's permit.
However, Spidel insisted that his Manhattan home was his permanent residence and that he continued to live and work in Riley County during that time. He acknowledged that he had intended to permanently change his address to Topeka on August 1, 2008, because he had rented his Manhattan house to some college students. However, that lease never commenced, because sometime after the contact with Shawnee County law enforcement, Bishop asked Spidel to leave the Quail Cove residence and he " move[d] back" to Manhattan.
Bishop's testimony painted a different picture of Spidel's residency. She said that Spidel began living at her Quail Cove residence in October or November of 2007 and by June 2008, he had moved all of his personal property there and he was receiving his mail at that address. On those days that Spidel did not stay at the Quail Cove address, he was staying at other places in Topeka, and not in Manhattan. She said that Spidel had been renting out the Manhattan house prior to the unfulfilled lease with the college students.
Spidel pointed out to the trial court that K.S.A. 22-4904(a) was the statutory provision that addressed the reporting requirements for temporary residences. However, he had been charged under K.S.A. 22-4904(b), which he argued only required registration when, or if, he changed his permanent residence. He asserted that, because his permanent residence remained in Manhattan, he could not be found guilty of violating the crime with which he was charged.
The district court believed that the issue came down to the definition of the term " residence." The court reviewed definitions of the term in prior cases and Black's Law Dictionary, ultimately concluding that Spidel did have a residence in Shawnee County as contemplated by the statute. Specifically the court noted the difference between a " residence" and a " domicile," in that the former required only a " bodily presence as an inhabitant in a given place" while the latter required not only a bodily presence but " also an intention to make it one's domicile." Based on this distinction, the district court found Spidel guilty of violating K.S .A. 22-4904(b).
Spidel timely appealed, challenging the constitutionality of K.S.A. 22-4904(b). This court transferred the appeal on its own motion pursuant to K.S.A. 20-3018(c).
Spidel's only argument on appeal is that K.S.A. 22-4904(b) is unconstitutionally vague. That provision states:
" If any person required to register as provided in this act changes the address of the person's residence, the offender, within 10 days, shall inform in writing the law enforcement agency where such offender last registered and the Kansas bureau of investigation of the new address."
Spidel contends that persons may only guess at what it means to " [change] the address of the person's residence." Therefore, the provision " traps the innocent by failing to provide a fair warning" of the prohibited conduct. However, Spidel supports his argument by reviewing the facts in his case and asserting that they do not support a conclusion that he ever changed his residence, i.e., he essentially makes a sufficiency of the evidence argument.
The State responds with a two-fold argument. First, it points out that Spidel did not raise the constitutional issue in the district court and therefore cannot raise it for the first time on appeal.
Second, on the merits, the State points out that the Kansas Legislature has provided a definition of the term " residence," which is to be applied to the construction of all Kansas statutes, unless the uniform definition is inconsistent with manifest legislative intent or repugnant to the entire provision. See K.S.A.2009 Supp. 77-201 Twenty-third. Moreover, the State points out that this court has previously opined, in the context of another statute, that the term " residence" is not unconstitutionally vague. Lines v. City of Topeka, 223 Kan. 772, 777, 577 P.2d 42 (1978) (" Taking into consideration prior judicial constructions and 77-201 Twenty-third, we have no hesitancy in holding that the term ‘ residence’ has a common understanding and the term is not so vague as to render [the provision] unconstitutional." ).
We first address the State's contention that Spidel's constitutional issue has not been preserved for our review. " Generally, issues not raised before a district court, including constitutional grounds for reversal, cannot be raised for the first time on appeal." Trotter v. State, 288 Kan. 112, 124, 200 P.3d 1236 (2009). However, we have made exceptions to that rule when
" (1) [t]he newly asserted theory involves only a question of law arising on proved or admitted facts and the issue is finally determinative of the case; (2) resolution of the question is necessary to serve the ends of justice or to prevent denial of fundamental rights; or (3) the district court reached the right conclusion but relied on the wrong ground or assigned a wrong reason for its decision." 288 Kan. at 125, 200 P.3d 1236.
Pointedly, Spidel did not argue for the application of an exception in his original brief and did not file a reply brief in response to the State's challenge to our ability to review the issue. Counsel did recite the exceptions at oral argument.
Ordinarily, a challenge to the facial validity of a statute would fit within the parameters of the first exception by presenting only a question of law that is finally determinative of the case. However, here, Spidel relies on the unique facts of his case to demonstrate how he could have been confused as to his registration obligation. At oral argument, counsel stated that the challenge was as to whether the statute was unconstitutionally vague as applied to Spidel, given that Spidel claimed to maintain a permanent residence in Manhattan. However, the fact that Spidel still maintained a residence in Manhattan was far from uncontroverted, in light of Bishop's testimony to the contrary.
The trial judge might have determined that Bishop's testimony-that the Quail Cove house was Spidel's permanent residence at the time-was the most credible evidence and that Spidel's assertion that he maintained another residence in Manhattan was incredible. In that event, Spidel's argument that K.S.A. 22-4904(b) is unconstitutionally vague as to which residence is a " person's residence" when the person has more than one residence would have been founded upon facts that were not applicable to him, i.e., " the aspects of the statute complained of did not apply to his case." See Tolen v. State, 285 Kan. 672, 674, 176 P.3d 170 (2008). We have said that " [d]efendants for whom a statute is constitutionally applied cannot challenge the constitutionality of the statute on the grounds that the statute may conceivably be applied unconstitutionally in circumstances other than those before the court." 285 Kan. 672, Syl. ¶ 2, 176 P.3d 170; accord Hearn v. City of Overland Park, 244 Kan. 638, 639, 772 P.2d 758, cert. denied 493 U.S. 976, 110 S.Ct. 500, 107 L.Ed.2d 503 (1989) (one to whom statute clearly applies may not successfully challenge it for vagueness).
Accordingly, we discern that this is not an appropriate case in which to invoke an exception to the general rule that issues must first be raised before the district court. To the contrary, it highlights the rationale for the general rule, which is to provide the trial judge an opportunity to consider the matter and articulate the reasons for his or her decision. See State v. Gant, 288 Kan. 76, 82, 201 P.3d 673 (2009).
Under the facts of this case, we hold that Spidel did not preserve the constitutional question for review by this court and affirm his conviction.
Affirm.
DAVIS, C.J., not participating.
GARIGUETTI, JOHN C., District Judge, assigned.