State Not Allowed To Change Their Theory Of The Case On Appeal – Failure To Register As As A Sex Offender Reversed

People v. Kindelspire, 2018 IL App (3d) 150803 (October). Episode 559 (Duration 13:50)

Failure to register conviction is overturned when state changes their theory of the case on appeal.

The Charges

Kindelspire was charged by indictment with two counts of the failure to comply with his duty to report as a sex offender.

Count I alleged that he “failed to notify *** the Chief of Police of Morris *** within three days after leaving his established residence in Morris.”
ount II alleged that Kindelspire “failed to notify *** the Chief of Police of Mazon *** within three days after he established his residence in Mazon.”

Facts

The charges originated from a Grundy County Sheriff’s Office report that Kindelspire “had changed address [sic] from Morris to Mazon without registering properly as a sex offender.”

The evidence presented at trial indicated that the police opened an investigation into defendant because his fiancée, Nicole, had testified in drug court, that he was living with her in Mazon. A Lieutenant from the Grundy County Sheriff’s Department then went to defendant’s Morris address to investigate.

Police spoke to the grandmother of the defendant, who told him that she had not seen him in a month, that he was no longer living at the Morris residence, and that he was living with his girlfriend first in Seneca and now possibly in Mazon. The Lieutenant then went to the Mazon residence, where he saw defendant’s work truck parked in the driveway.

No one answered the door.

Three days later, defendant came to the Grundy County Sheriff’s Department, told the Lieutenant that he had informed the Morris police that he was moving, and said he wanted to register his address as the Mazon residence.

Horrie arrested Kindelspire at that time.

SORA Registration Requirement

We note that the duty to register and the duty to report are distinct concepts that must not be mistaken or conflated. See id. §§ 3, 6; People v. Brock, 2015 IL App (1st) 133404, ¶¶ 15-18.

Section 6 of the Act, titled “Duty to report; change of address, school, or employment; duty to inform”; contains a lengthy and cumbersome description of the duty persons subject to the Act have to report, inter alia, their residence addresses to the appropriate agency in charge of sex offender registration. See 730 ILCS 150/6.

Despite the fact that there are several distinct ways of violating section 6’s reporting requirement, the statute does not break these distinct violations into separate subsections. For example, section 6 requires that

“[i]f any person required to register under this Article lacks a fixed residence or temporary domicile, he or she must notify, in person, the agency of jurisdiction of his or her last known address within 3 days after ceasing to have a fixed residence and if the offender leaves the last jurisdiction of residence, he or she, must within 3 days after leaving register in person with the new agency of jurisdiction.”

730 ILCS 150/6 (hereinafter the fixed address provision).

Additionally, and of particular relevance to this case, section 6 also requires that

“[i]f any other person required to register under this Article changes his or her residence address *** he or she shall report in person, to the law enforcement agency with whom he or she last registered, his or her new address *** and register, in person, with the appropriate law enforcement agency within the time period specified in Section 3.”

730 ILCS 150/6 (hereinafter the change-of-address provision).

More Facts On The New Place

Stipulated evidence was admitted that showed defendant registered as a sex offender at the Morris address on January 1, 2014, and at the Mazon address on March 17, 2014.

In addition, a certified copy of his 2008 conviction for aggravated criminal sexual abuse was admitted into evidence without objection.

The State also presented evidence that defendant had set up a water and sewer account with the municipality of Mazon, in both his name and his girlfriend’s name. The two had signed a lease for the Mazon residence and that defendant had been seen at the residence at various times between February and March by the landlord and a neighbor.

Defendant’s work truck had also been seen frequently at the residence.

More Facts On The Old Place

Defendant’s grandmother testified that she could not recall when defendant moved out.

She stated it could have been 3 months, 2 months, or 1 month from the time the police talked to her. She didn’t remember. He had a room in the house, and he was mostly there only when sleeping due to his long work hours. He had some belongings there, including toiletries, books, and clothes, but not many as he was essentially living out of a backpack.

She could not say if he slept there every night because some nights she went to sleep before he came back to the residence. Because he did not have a key for the residence, if he returned after she had gone to sleep, he would sleep either in the garage or in his truck. He did not have a key due to problems he had earlier in his life (drug use).

His girlfriend clarified that she may have said in drug court that she and defendant had moved to Mazon, but she meant that they were preparing to move together to live as a family.

Once the lease was signed defendant helped minimally with the move because he had been working. He did not move in right away. Most days, he was gone from sunup to sundown. Some days, she did not see him at all. She also stated that he did not always take his work truck to a job site; he would use her car or a rental. Coworkers would pick up the truck from the Mazon residence. He had no belongings in the residence and did not stay the night there, although he would visit daily if he could.

State’s Theory

In his closing argument, the prosecutor stated that there were two propositions that the State needed to prove:

(1) that Kindelspire was subject to the registration requirements of the Sex Offender Registration Act and
(2) “that defendant knowingly failed to report a residence change within three days.”

The evidence was clear that defendant “did not register an address change until March 17, 2014.”

The prosecutor further stated:

“In looking at the big picture in this, it becomes clear with the evidence that the defendant’s truck was there. He’s got the lease. He’s got the accounts. The defendant was living at that address. He knew he had to register. He hadn’t gotten around to it, but as soon as the police started questioning, he tried to register, tried to remedy the situation, but it was too late.”

Found Guilty

The court found defendant guilty because it said the state did not have to prove exactly where he was living. “I think they just have to prove that he had moved out of the residence he was registered at for the requisite time period under the statute.”

Issue

On appeal, Kindelspire argues that the State failed to prove beyond a reasonable doubt that he violated section 6 of the Sex Offender Registration Act (Act) (730 ILCS 150/6).

He does not contest that he was subject to the Act’s reporting requirements or that he had moved out of his Morris residence. Specifically, he contends that, contrary to the circuit court’s ruling, the State was also required to prove that he had established a new address. Because that evidence was lacking, he requests that we reverse his conviction.

State Now Changing It’s Theory Of The Case

It is important to note the existence of these distinct violations of section 6 because the State has changed its theory of the case on appeal.

In the circuit court, the State consistently treated this case as a change-of-address violation of section 6. However, for the first time on appeal, the State now argues that count I of the indictment charged defendant with a violation of the fixed-address provision of section 6.

Even if the State had not forfeited its argument, we would not have been persuaded.

The Indictment

The indictment alleged two separate violations of section 6:

(1) Kindelspire “failed to notify *** the Chief of Police of Morris *** within three days after leaving his established residence in Morris”; and
(2) he “failed to notify *** the Chief of Police of Mazon *** within three days after he established his residence in Mazon.”

The indictment contained no allegation of Defendant ceasing to have a fixed residence, nor did the State ever treat this case as such in the circuit court.

In fact, the State’s theory throughout this case below was that Defendant failed to register after he moved out of his Morris residence and into the Mazon residence, i.e., that he violated the change-of-address provision in section 6.

There is simply no indication from the record that the State ever treated this case as a violation of the fixed-address provision. The attempt to do so now is disingenuous and raises due process concerns. See, e.g., People v. Pearse, 2017 IL 121072, ¶ 38 (expressing, in a sex offender registration case, a concern that even after the proofs had been closed, the parties and the court were still debating what statutory section applied, the parameters of the charge, what had to be proven, and what had been proven, and holding that a defendant in a criminal prosecution has a fundamental due process right to notice of the charges against him).

Based On How They Charged State Had To Prove Where He Was Living

The Second District clarified that under section 6 of the Act

“to prove a violation of the duty to report a change of address, the State was required to prove that defendant:

(1) was previously convicted of an offense subjecting him to the Act; and
(2) established a new ‘fixed residence’ or ‘temporary domicile’;
(3) which he knowingly failed to report in person to the law enforcement agency with whom he last registered.”

See People v. Robinson, 2013 IL App (2d) 120087.

Under the Act, a “fixed residence” includes “any and all places that a sex offender resides for an aggregate period of time of 5 or more days in a calendar year.” 730 ILCS 150/2(I).

A “temporary domicile is defined as any and all places where the sex offender resides for an aggregate period of time of 3 or more days during any calendar year.”730 ILCS 150/3(a).

In this case, the circuit court held that the State did not have to prove that defendant had established a new address, i.e., a new fixed residence or temporary domicile. This was error. See Robinson, 2013 IL App (2d) 120087, ¶ 23.

Holding

Here, the circuit court found that the State failed to prove that Defendant had been living at the Mazon residence. Because this proof was a necessary element to prove defendant guilty of violating section 6 of the Act, we hold that no reasonable fact finder could have found him guilty beyond a reasonable doubt.

Accordingly, we reverse defendant’s conviction.

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