State v. Hernandez-Cartagena

NOT DESIGNATED FOR PUBLICATION

No. 113,862

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JOCELYN HERNANDEZ-CARTAGENA,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOSEPH BRIBESCA, judge. Opinion filed September 1,
2017. Affirmed.

Joanna Labastida, of Kansas Appellate Defender Office, for appellant.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before MALONE, P.J., LEBEN and BRUNS, JJ.

LEBEN, J.: A jury convicted Jocelyn Hernandez-Cartagena of aggravated human
trafficking based on the role she played in a Wichita prostitution ring. She raises three
arguments on appeal, but each one runs contrary to recent caselaw from our court or the
Kansas Supreme Court:
 First, she argues that the district court erred by instructing the jury that it
"should" convict her if it found that the State had proved all elements of the
crime beyond a reasonable doubt. She suggests that the court should instead
say that the jury "may" convict the defendant under those circumstances.
But the word "'should' does not express a mandatory, unyielding duty or
2

obligation; instead, it merely denotes the proper course of action and
encourages following the advised path." State v. Allen, 52 Kan. App. 2d
729, Syl. ¶ 5, 372 P.3d 432 (2016), rev. denied April 17, 2017.
Accordingly, as our court held in Allen and other cases, the use of "should"
in this instruction is proper. See, e.g., Allen, 52 Kan. App. 2d 729, Syl. ¶ 5;
State v. Taylor, No. 115,420, 2017 WL 1034543, at *4 (Kan. App.)
(unpublished opinion), petition for rev. filed April 17, 2017. In a related
argument, she claims that the prosecutor misstated the law when he said the
jury should ask, "[D]id the State prove its case, and if so, you find her
guilty." But the prosecutor said nothing that contradicted the court's jury
instruction on this point.
 Second, she argues that the State should have charged her with promoting
prostitution because it is a more specific offense than aggravated human
trafficking. But the Kansas Supreme Court has held that promoting
prostitution isn't a more specific offense than aggravated human trafficking.
State v. Williams, 299 Kan. 911, Syl. ¶ 5, 329 P.3d 400 (2014). And the
facts in this case don't require a different conclusion.
 Third, she argues that her registration requirement violates the Ex Post
Facto Clause of the United States Constitution because at the time of her
crime, aggravated human trafficking wasn't an offense that required
registration, while now it does. But laws that violate the Ex Post Facto
Clause are those that apply retroactively and are punitive, and a majority of
the Kansas Supreme Court had held that Kansas' sex-offender registration
system isn't punitive. See State v. Reed, 306 Kan. ___, Syl., ___ P.3d ___,
2017 WL 3326944 (No. 110,277, filed August 4, 2017); State v. Petersen-
Beard, 304 Kan. 192, Syl. ¶ 2, 377 P.3d 1127 (2016). So even though
aggravated human trafficking wasn't a registration crime at the time of
Hernandez-Cartagena's actions in 2013, the 2014 amendment making
3

aggravated human trafficking a registration offense can be applied to her
without violating the Ex Post Facto Clause.

We therefore affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In January 2013, 16-year-old Y.M. ran away from home. By mid-February, she
was working as a prostitute for Jaylyn Bradley, a Wichita pimp. Y.M. was arrested in
April.

Officer Michael Nagy, who works with a police unit dedicated to missing and
exploited children, interviewed Y.M., and she eventually identified Bradley as her pimp
and Hernandez-Cartagena as another of Bradley's prostitutes (and also the mother of his
child). Y.M. said that Hernandez-Cartagena was Bradley's "bottom bitch," meaning that
she'd do anything for him. According to trial testimony, the term "bottom bitch" describes
a pimp's top girlfriend and second in command; she is like middle management, driving
girls to meet prostitution clients and collecting money for the pimp.

There isn't much dispute about the facts surrounding how Y.M. came to work for
Bradley, the work she did for Bradley, or the ways that Hernandez-Cartagena was
involved. According to Y.M., in mid-February 2013, she went to Houston for a weekend
with Bradley, Hernandez-Cartagena, and two other people. While there, someone placed
an escort ad for her on Backpage.com, and she worked as a prostitute for the first time.

Y.M. continued working as a prostitute after she returned to Wichita, in motel
rooms that Hernandez-Cartagena rented for her. The State presented four receipts from a
motel, all signed by Hernandez-Cartagena. Y.M.'s escort ads appeared in the Wichita
section of Backpage.com; both Bradley and Hernandez-Cartagena posted those ads for
4

her, and Hernandez-Cartagena taught her how to regularly update her posts to keep them
at the top of the page.

Sometimes prostitution clients would come to the motel to meet with Y.M., but
other times Y.M. met her clients elsewhere. When that happened, either Bradley or
Hernandez-Cartagena would drive Y.M. to meet the client; Y.M. estimated that she'd had
more than 20 appointments like this and that Hernandez-Cartagena had driven her to 5 or
6 of them. When Hernandez-Cartagena drove, she would wait outside during Y.M.'s
appointment and then drive her back to the motel; Y.M. would leave the money in the car
with Hernandez-Cartagena. (Y.M. wasn't allowed to keep any of the money she earned
while working for Bradley.)

The State charged Hernandez-Cartagena with aggravated human trafficking, a
severity-level-one person felony, for her role in Bradley's prostitution ring and
specifically for the act of driving Y.M. to her prostitution appointments. The aggravated-
human-trafficking statute prohibits transporting someone under 18 with knowledge that
the person will be used to engage in someone's sexual gratification. K.S.A. 2012 Supp.
21-5426(b)(4).

Hernandez-Cartagena asked the district court to instruct the jury on the lesser
offense of promoting prostitution and to change the wording of the reasonable-doubt
instruction so that the jury would feel free to acquit even if the State presented sufficient
evidence. The district court denied both requests. The jury convicted Hernandez-
Cartagena of one count of aggravated human trafficking.

The sentencing hearing was continued for over a year while Hernandez-Cartagena
provided the police with evidence against Bradley (who eventually pled to and was
convicted of sexual exploitation of a child). During this time, Hernandez-Cartagena was
on supervised release from jail, and she successfully followed all the conditions of her
5

release. At sentencing, Hernandez-Cartagena asked to be placed on probation instead of
being sent to prison, and the State agreed with her request, in part because she had
provided evidence against Bradley and in part because she had followed all the
conditions of her release pending sentencing. The district court granted Hernandez-
Cartagena's request and imposed 36 months of probation with an underlying 176-month
prison term. The district court informed Hernandez-Cartagena that aggravated human
trafficking is a lifetime-registration offense, so she would have to register as a sex
offender for the rest of her life.

Hernandez-Cartagena has appealed to our court.

ANALYSIS

I. Neither the District Court nor the Prosecutor Incorrectly Stated the Law on
Reasonable Doubt and the Burden of Proof.

Hernandez-Cartagena first argues that the district court erred when instructing the
jury on reasonable doubt and the burden of proof. She complains that the jury instruction
kept the jury from exercising its inherent right to disregard the law and evidence to acquit
a defendant.

Hernandez-Cartagena objected to this instruction at trial. So we must determine
whether the instruction fairly and accurately states the law, a question we consider
independently and without any required deference to the district court. State v. Woods,
301 Kan. 852, 876, 348 P.3d 583 (2015); State v. Plummer, 295 Kan. 156, 161, 283 P.3d
202 (2012); State v. Jones, No. 111,386, 2015 WL 4716235, at *5 (Kan. App. 2015)
(unpublished opinion). If the district court did err in giving the instruction, we must
determine whether the error was harmless. Woods, 301 Kan. at 876; Plummer, 295 Kan.
at 162-63.
6


The jury instruction that Hernandez-Cartagena challenges was taken from the
standard jury instructions that Kansas trial courts are encouraged to use. A committee
created these instructions, aiming to provide accurate, clear, and uniform instructions to
trial courts. See Allen, 52 Kan. App. 2d at 733-34. Specifically, Hernandez-Cartagena
challenges the use of the word "should" in the last sentence of the instruction:

"The test you must use in determining whether the defendant is guilty or not
guilty is this: If you have a reasonable doubt as to the truth of any of the claims required
to be proved by the State, you must find the defendant not guilty. If you have no
reasonable doubt as to the truth of each of the claims required to be proved by the State,
you should find the defendant guilty." (Emphasis added.) PIK Crim. 4th 51.010.

Hernandez-Cartagena argues that the jury instruction was not legally appropriate
because it precluded the possibility of jury nullification—the power of the jury "to
disregard the rules of law and evidence in order to acquit the defendant based upon the
jurors' sympathies, notions of right and wrong, or a desire to send a message on some
social issue." See Allen, 52 Kan. App. 2d 729, Syl. ¶ 4. She contends that the use of the
word "should," rather than the word "may," requires the jury find the defendant guilty if it
finds that all elements of the charged crime were proven beyond a reasonable doubt.

Although Hernandez-Cartagena is correct that jurors in a criminal case may
disregard the rules of law and the evidence in order to acquit a defendant, the proper duty
of a jury is to accept the rules of law given to it as instructions, apply those rules to
determine whether facts are proven, and deliver a verdict based on those considerations.
State v. McClanahan, 212 Kan. 208, 217, 510 P.2d 153 (1973). For those reasons,
criminal defendants aren't entitled to have the jury expressly instructed on its inherent
power of nullification. State v. Naputi, 293 Kan. 55, 66, 260 P.3d 86 (2011).

7

At the same time, the jury instructions cannot forbid a jury from exercising its
inherent nullification power. State v. Smith-Parker, 301 Kan. 132, 164, 340 P.3d 485
(2014). In Smith-Parker, the relevant jury instruction read: "'If you do not have a
reasonable doubt from all the evidence that the State has proven murder in the first
degree on either or both theories, then you will enter a verdict of guilty.'" (Emphasis
added.) 301 Kan. at 163. Our Supreme Court decided that this instruction went too far
and "essentially forbade the jury from exercising its power of nullification." 301 Kan. at
164. The court concluded that the use of "must" or "will" amounted to directing a verdict
for the State, noting that "[a] judge cannot compel a jury to convict, even if it finds all
elements proved beyond a reasonable doubt." 301 Kan. at 164.

In her brief, Hernandez-Cartagena discusses State v. Lovelace, 227 Kan. 348, 354,
607 P.2d 49 (1980), overruled in part by Smith-Parker, 301 Kan. 132, where our
Supreme Court held that the words "must" and "should" were interchangeable and
acceptable in a reasonable-doubt instruction, as "[b]oth convey a sense of duty and
obligation." Smith-Parker discussed Lovelace's holding and overruled it, concluding that
the use of "must" in Lovelace and the use of "will" in Smith-Parker "fly too close to the
sun of directing a verdict for the State." 301 Kan. at 164. In essence, the Smith-Parker
court concluded that "must" was much closer in meaning to the term "will" than to the
term "should." See 301 Kan. at 164; State v. Benewiat, No. 114,676, 2017 WL 66355, at
*7 (Kan. App. 2017) (unpublished opinion), petition for rev. filed February 6, 2017. In
our view, the holding in Smith-Parker suggests that the use of "should" in a reasonable-
doubt jury instruction is appropriate. See Smith-Parker, 301 Kan. at 164; Benewiat, 2017
WL 66355, at *7.

Our court has consistently held that the jury instruction at issue is proper. See, e.g.,
Allen, 52 Kan. App. 2d 729, Syl. ¶ 5; Taylor, 2017 WL 1034543, at *4; State v. Cuellar,
No. 112,535, 2016 WL 1614037, at *1-2 (Kan. App. 2016) (unpublished opinion), rev.
8

denied April 17, 2017; State v. Jones, No. 111,386, 2015 WL 4716235, at *6 (Kan. App.
2015) (unpublished opinion). We agree with those decisions.

Hernandez-Cartagena argues that "should" is the past tense of "shall," and "shall"
is, by definition, a command or an indication that something is mandatory. But her
argument is off the mark when applied to this jury instruction. While it is possible to use
"should" as the past tense of "shall," that use isn't common because we don't use "shall"
much in spoken language. See Taylor, 2017 WL 1034543, at *3. In any case, that's not
how the word "should" is used in this jury instruction. Instead, the "should" in the
instruction simply reflects a lesser degree of duty than "shall." See Black's Law
Dictionary 558 (10th ed. 2014) (noting that a directory requirement, which is an action
that is advisable but not mandatory, "is frequently introduced by the word should");
Black's Law Dictionary 1585 (10th ed. 2014) (noting that while "shall" properly means a
mandatory requirement, it is sometimes interpreted to mean "should," a lesser duty);
Garner's Dictionary of Legal Usage 952-55 (3d ed. 2011).

As the Allen panel recognized, "Unlike the words 'must,' 'shall,' and 'will,' the
word 'should' does not express a mandatory, unyielding duty or obligation; instead, it
merely denotes the proper course of action and encourages following the advised path."
52 Kan. App. 2d 729, Syl. ¶ 5. Likewise, in State v. Singleton, No. 112,997, 2016 WL
368083, at *6 (Kan. App.) (unpublished opinion), rev. denied 305 Kan. 1257 (2016), a
panel of this court emphasized that "should" is advisory, explaining:

"[A]s every teacher instructing a class knows, and as every parent admonishing a child
knows, should is less of an imperative than must or will. [Citation omitted.] Nutritionists
urge that we all should eat our vegetables. But that does not constitute a directive to have
recalcitrant diners force-fed their vegetables if they do not comply. . . . Should as used in
this instruction is not the equivalent of 'must' or 'will' . . . . Should is advisory. It is not an
imperative."

9

In summary, the jury instruction on reasonable doubt and the burden of proof
accurately stated the law; it did not direct a verdict for the State or take away the jury's
inherent power of nullification.

In a similar argument, Hernandez-Cartagena claims that the prosecutor misstated
the law on jury nullification by telling the jury, during closing argument, that it must
convict her if the State had proven all the elements of the crime beyond a reasonable
doubt.

When analyzing claims of prosecutorial error, we first ask whether the prosecutor's
comments were improper and outside the wide latitude that the State has to prove its case.
If they were, we then ask whether the improper comments prejudiced the jury against the
defendant and denied the defendant a fair trial. State v. Sherman, 305 Kan. 88, 109, 378
P.3d 1060 (2016). "A defendant is denied a fair trial when a prosecutor misstates the law
and the facts are such that the jury could have been confused or misled by the statement."
State v. Robinson, 306 Kan. ___, 394 P.3d 868, 876 (2017); see State v. Huddleston, 298
Kan. 941, 946, 318 P.3d 140 (2014).

Here, Hernandez-Cartagena claims that the prosecutor misstated the law on jury
nullification when he finished his closing argument and asked the jury to convict:

"Call her a cabbie, call her a bottom girl, call her a middle manager. The fact is,
she's involved in this organization, and she's in for a penny, she's in for a pound. You
may find it distasteful. You may find—you may have pity. You may say, you know what,
I feel sorry for this young girl. You can't do that. You have to step back and you have to
say, did the State prove its case, and if so, you find her guilty. That's what I'm required to
prove, nothing more, nothing less, and that's all I ask of you, to follow the law and find
her guilty." (Emphasis added.)

10

Hernandez-Cartagena claims that the italicized language is the same as a reasonable-
doubt jury instruction telling the jury that if it finds that the State has proved all the
elements of the crime beyond a reasonable doubt, it "must" or "will" convict the
defendant. See Smith-Parker, 301 Kan. at 164 (holding that "must" and "will" come too
close to directing a verdict for the State). But the prosecutor didn't actually use the words
"must" or "shall"; he only said, "if so, you find her guilty." This could mean "you must
find her guilty," as Hernandez-Cartagena argues. But it could just as easily mean "you
should find her guilty"—the language we have approved in the reasonable-doubt jury
instruction—or "you may find her guilty"—the language Hernandez-Cartagena requested
in that jury instruction. Because of this vagueness and the wide latitude allowed in
closing arguments, we do not conclude that the prosecutor misstated the law. See also
State v. Spalding, No. 114,561, 2017 WL 1433513, at *6-7 (Kan. App.) (unpublished
opinion) (holding that prosecutor did not err by urging jurors, during voir dire, to follow
the law), petition for rev. filed May 18, 2017; Cuellar, 2016 WL 1614037, at *2-3
(same).

The State cites several unpublished cases from this court holding that prosecutors
did not err by telling the jury during closing argument that it "must" convict if the State
had proved each element of the crime beyond a reasonable doubt. We do not rely on
these cases because they all rest on the now-disapproved notion from Lovelace (and other
cases) that "must" and "should" are interchangeable in the context of reasonable doubt
and burden of proof. See State v. Jones, No. 109,231, 2014 WL 1707480, at *4-5 (Kan.
App. 2014) (unpublished opinion) (noting that court was bound to follow Supreme Court
precedent in Lovelace); State v. Johnson, No. 107,524, 2013 WL 2321167, at *6 (Kan.
App. 2013) (unpublished opinion) (noting that Kansas Supreme Court rejected a
difference between "must" and "should"); State v. Fawl, No. 103,004, 2011 WL 4563067,
at *7 (Kan. App. 2011) (unpublished opinion) (same). Instead, we simply conclude that
the prosecutor in this case did not misstate the law when he encouraged the jury to follow
the law because he did not tell the jury that it "must" convict Hernandez-Cartagena.
11


Because we find no error, we need not move on to the second step of the
prosecutorial-error analysis. See State v. Stevenson, 297 Kan. 49, 54-55, 298 P.3d 303
(2013) (finding no error and declining to analyze second step).

Hernandez-Cartagena also argues that these two errors taken together require us to
reverse her conviction. She's right that errors that are individually harmless may require
reversal when considered together. State v. Hart, 297 Kan. 494, 513, 301 P.3d 1279
(2013). But we have found no error at all, in either the jury instruction or the prosecutor's
statement, so there can be no cumulative error. See State v. Williams, 299 Kan. 509, 566,
324 P.3d 1078 (2014).

II. Promoting Prostitution Is Not the More Appropriate Charge for the Crime Charged
Here.

Hernandez-Cartagena argues that her conduct was prohibited by both the
aggravated-human-trafficking statute and the promoting-prostitution statute, so she could
only be convicted of promoting prostitution because it's the more specific offense. She
didn't raise this issue at the district court, but we will consider it for the first time on
appeal because it involves only a question of law that could be finally determinative of
the case. See Williams, 299 Kan. at 929-30.

When one statute speaks to a subject specifically and conflicts with another that
deals with the subject more generally, the specific statute will apply. State v. Cott, 288
Kan. 643, 645, 206 P.3d 514 (2009). This rule—called the general/specific canon of
statutory interpretation—is used to determine which statute applies in a particular case.
See State v. Helms, 242 Kan. 511, 514, 748 P.2d 425 (1988); Cott, 288 Kan. at 645; State
v. Williams, 250 Kan. 730, 733, 829 P.2d 892 (1992); Scalia and Garner, Reading Law:
The Interpretation of Legal Texts 183-88 (2012). Whether this rule applies is a question
12

of law that we review independently and without any required deference to the district
court's conclusion. Williams, 299 Kan. at 930. And because the rule is just a way of
determining legislative intent, it doesn't apply when there is a clear indication that the
legislature didn't intend for one statute to be the only option for punishing a particular
activity. 299 Kan. at 930; see Cott, 288 Kan. 643, Syl. ¶ 2; Helms, 242 Kan. at 514.

The portion of the aggravated-human-trafficking statute that applied to
Hernandez-Cartagena makes it a crime to transport a person under 18 with knowledge
that the person "will be used to engage in forced labor, involuntary servitude or sexual
gratification of the defendant or another." K.S.A. 2012 Supp. 21-5426(b)(4). But there
was another statute potentially applicable here that was already in place at the time the
new, aggravated-human-trafficking statute was enacted. The other statute outlawed
promoting prostitution, defined as knowingly "transporting a person within this state with
the intention of assisting or promoting that person's engaging in prostitution." K.S.A.
2012 Supp. 21-6420(7). (The promoting-prostitution statute has since been amended to
apply only when the victim is over 18 and has been renamed "Promoting the sale of
sexual relations." See K.S.A. 2016 Supp. 21-6420.) So both statutes appear to cover
Hernandez-Cartagena's actions in driving Y.M. to her prostitution appointments, and they
arguably conflict since they have different severity levels and thus different attendant
penalties. Is the promoting-prostitution statute more specific such that it should have been
applied to her?

In Williams, the defendant made the same argument that Hernandez-Cartagena
makes here, and the Kansas Supreme Court concluded that promoting prostitution was
not a more specific offense than aggravated human trafficking. 299 Kan. 911, Syl. ¶ 5.
The court reviewed the legislative history and noted that the testimony from the
legislative hearings suggested that the trafficking statute was meant to capture a broad
range of activities, despite some overlap with crimes that already existed. 299 Kan. at
931. The Williams court noted that the legislature intended the trafficking statute to apply
13

in situations "in which a minor's vulnerability is exploited through an abuse of power."
299 Kan. at 923. So although Williams' conduct would have met the definition of
promoting prostitution, his actions also "went beyond the behaviors targeted by that
provision and more clearly [fell] within the scope of conduct the legislature intended to
criminalize through the aggravated trafficking statute." 299 Kan. at 932. Thus, under the
facts of that case, promoting prostitution wasn't a more specific version of aggravated
human trafficking, and the State could prosecute Williams for aggravated human
trafficking.

In our case, Hernandez-Cartagena claims, under the facts of her case, that
promoting prostitution is a more specific version of aggravated human trafficking. She
argues that the evidence showed substantially less control and exploitation than in
Williams because she and Y.M. were both under the control of Bradley, their pimp. For
example, she points to testimony that she only drove Y.M. to sexual encounters when
Bradley told her to.

But Hernandez-Cartagena ignores other evidence of exploitation that supports
charging her with trafficking rather than promoting prostitution. For example, according
to the evidence, Hernandez-Cartagena was the second-in-command in Bradley's
prostitution ring. When Bradley and Hernandez-Cartagena took Y.M. to Houston,
evidence suggested that Hernandez-Cartagena provided the vehicle to get there and
controlled the money Y.M. made there. When they returned to Wichita, she set up Y.M.'s
Backpage ads, taught her how to update her ads to increase marketability, rented and paid
for her hotel rooms, waited outside during appointments, drove her to other sexual
encounters, and collected the money Y.M. made. Although Hernandez-Cartagena may
have been controlled by Bradley, she nonetheless controlled and exploited Y.M. as a
more junior member of Bradley's prostitution ring. Her conduct went beyond the
behaviors targeted by the promoting-prostitution statute and fit better under the
aggravated-human-trafficking statute. See State v. Sanders, No. 111,738, 2015 WL
14

5311429, at *2-4 (Kan. App. 2015) (unpublished opinion) (conducting similar factual
comparison and concluding that promoting prostitution wasn't the more specific offense),
rev. denied 304 Kan. 1021 (2016); State v. Neloms, No. 110,391, 2016 WL 463362, at *8
(Kan. App. 2016) (unpublished opinion) (concluding that Williams held that regardless of
factual distinctions, promoting prostitution can never be a more specific offense than
aggravated human trafficking), rev. denied August 24, 2017. We believe the conclusion
reached by our Supreme Court in Williams applies here too: "[W]e hold that promoting
prostitution is not a more specific crime under the facts of this case." 299 Kan. at 933.

III. Requiring Hernandez-Cartagena to Register as a Sex Offender Doesn't Violate the Ex
Post Facto Clause of the United States Constitution Because Registration Isn't
Punishment.

Hernandez-Cartagena's final claim is that her registration requirement is
unconstitutional because at the time of her crime, aggravated human trafficking wasn't an
offense that required registration. She didn't raise this issue below, but we consider it for
the first time on appeal to prevent the denial of fundamental rights and because it's an
issue of law arising on undisputed facts. See State v. Phillips, 299 Kan. 479, 493, 325
P.3d 1095 (2014). We review the constitutionality of a statute independently, without any
required deference to the district court. State v. Petersen-Beard, 304 Kan. 192, 194, 377
P.3d 1127 (2016).

The Ex Post Facto Clause of the United States Constitution forbids laws that
impose a punishment for an act which was not punishable when it was committed or that
impose additional punishments to those that existed when the act was committed. U.S.
Const. art. 1, § 10. "Ex post facto" is a Latin phrase that simply means "after the fact"; it's
something done later. Black's Law Dictionary 701 (10th ed. 2014). So an "ex post facto"
law is one that applies retroactively to events that took place before it became a law. The
government violates the Ex Post Facto Clause if two critical elements are present: (1) the
law is retrospective, in that it applies to acts done before it was passed, and (2) the law
15

disadvantages the offender affected by it by adding additional punishment. State v. Prine,
297 Kan. 460, 469, 303 P.3d 662 (2013).

Here, Hernandez-Cartagena claims that her registration requirement violates the
prohibition on ex-post-facto laws because she committed aggravated human trafficking in
2013, and that crime didn't become a registration offense until 2014. L. 2014, ch. 117,
sec. 2; K.S.A. 2016 Supp. 22-4902(c)(13). After she filed her brief, though, the Kansas
Supreme Court issued its opinion in Petersen-Beard, in which a majority of the court
held that the Kansas Offender Registration Act (as amended in 2011) was not punishment
"for purposes of applying provisions of the United States Constitution." 304 Kan. 192,
Syl. ¶ 1. The Petersen-Beard majority determined that the Act was intended "to be a
nonpunitive and civil regulatory scheme rather than punishment." 304 Kan. at 195. The
court recently reaffirmed Petersen-Beard, concluding in State v. Reed, 306 Kan. ___,
Syl., that "[r]egistration for sex offenders mandated by the Kansas Offender Registration
Act . . . does not constitute punishment under the Ex Post Facto Clause of the United
States Constitution."

Thus, because laws that violate the Ex Post Facto Clause are those that apply
retroactively and are punitive, and because the registration requirement isn't punitive,
there's no constitutional problem with applying changes to the registration statute
retroactively. So even though aggravated human trafficking wasn't a registration crime at
the time of Hernandez-Cartagena's actions in 2013, the 2014 amendment making
aggravated human trafficking a registration offense can be applied to her without
violating the Ex Post Facto Clause.

We affirm the district court's judgment.