State v. Moss

1

NOT DESIGNATED FOR PUBLICATION

No. 113,382

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DEWAYNE L. MOSS,
Appellant.


MEMORANDUM OPINION

Appeal from Douglas District Court; SALLY D. POKORNY, judge. Opinion filed July 15, 2016.
Affirmed.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before BUSER, P.J., ATCHESON and SCHROEDER, JJ.

BUSER, J.: Dewayne L. Moss appeals his convictions of several counts of
violating the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq. In
particular, Moss contends the district court erred when it denied his motion to dismiss the
charges because, despite the court's contrary ruling, he does not fall within KORA's
definition of a sex offender and was not obligated to comply with the enhanced
registration requirements applicable to sex offenders. Alternatively, Moss contends that
interpreting KORA in a manner which obligates him to register as a sex offender, rather
2

than a mere offender, renders KORA constitutionally infirm. Finding no error in the
district court's ruling, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Following a bench trial held on September 17, 2014, the district court convicted
Moss of several violations of KORA. These charges included one count of aggravated
failure to register, a level 3 person felony in violation of K.S.A. 2015 Supp. 22-4903(b);
two counts of failing to register, level 6 person felonies in violation of K.S.A. 2015 Supp.
22-4903(a); and one count of failure to pay offender-registration fees, a level 9 person
felony in violation of K.S.A. 2015 Supp. 22-4903(a). Moss' convictions arose from the
following stipulated facts:

"1. In 1991 [Moss] was convicted of attempted rape in the Circuit Court of Lafeytte [sic]
County, Missouri, case CR390-30FX.
"2. In October, 2009, [Moss] was residing in Douglas County, Kansas and has
continuously resided in Douglas County, Kansas through the date of the trial.
"3. [Moss] received notice in October, 2012 that he was required under Kansas Law to
register in Kansas as a sex offender and comply with the duties under [KORA].
"4. [Moss] began registering in Kansas under [KORA] on 10/7/09 and continued to
register as required through 12/18/2012. [Moss] registered by reporting to the Douglas
County Sheriff's Office and specifically with Al Deathe, or his designee. There, [Moss]
completed the Kansas Offender Registration Form and affixed his signature before a
witness who was registering [Moss].
"5. [Moss] did not report to the Douglas County Sheriff's Office to register and did not
complete the Kansas Offender Registration Form in March, 2013. From March, 2013
through February 24, 2014, [Moss] did not report to the Douglas County Sheriff's Office
to register and he did not complete the Kansas Offender Registration Form.
"6. From March, 2013 through and including February 24, 2014, [Moss] was not in the
custody of a correctional facility and was not receiving inpatient treatment at any
treatment facility.

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"7. [Moss] was required to register as an offender in Douglas County, Kansas.
"8. [Moss] did not remit the payment as required under [KORA] as part of the reporting
process at all after his registration form was completed when he reported December 18,
2012. [Moss] never paid this.
"9. [Moss] did not remit the payment as required under [KORA] as part of the reporting
process at all after his registration form was completed when he reported May 21, 2014.
[Moss] never paid this."

Moss was sentenced on November 3, 2014. The district court granted Moss'
motion for a downward dispositional departure and sentenced him to 36 months'
probation with an underlying prison term of 102 months. Moss timely appeals.

DID THE DISTRICT COURT ERR WHEN IT RULED THAT MOSS WAS REQUIRED TO
REGISTER AS A SEX OFFENDER UNDER KORA?

Prior to trial, Moss filed a motion to dismiss the charges for lack of probable
cause. Moss alleged that while he falls within KORA's definition of an "'[o]ffender"
because of his obligation to register under Missouri law, he does not qualify as a "'[s]ex
offender'" in Kansas because KORA defines such offenders as "individuals who are
convicted of sexually violent crimes '[o]n or after April 14, 1994[,]'" and his attempted
rape conviction occurred in 1991. See K.S.A. 2015 Supp. 22-4902. Moss claimed the
State could not establish his guilt for the charged crimes because he complied with the
registration requirements applicable to an offender. Alternatively, Moss asserted that
subjecting him to the sex offender registration requirements violated his rights under the
Privileges or Immunities Clause of the Fourteenth Amendment and Article IV § 2 of the
United States Constitution. Moss reasoned that such obligations placed a burden upon
him that is "greater than the burden placed on a similarly-situated Kansas resident
convicted of attempted rape in Kansas on the same date."

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The State, on the other hand, contended that Moss qualified as a sex offender
under KORA and, thus, he was subject to the registration requirements applicable to such
offenders. In particular, the State insisted "[t]here is no classification of 'just plain
offender'" in the KORA. Instead, KORA provides registration and reporting requirements
for sex offenders, violent offenders, and drug offenders; therefore, individuals who are
required to register due to an out-of-state conviction must register under one of these
three categories. The State also maintained that although Moss' conviction occurred prior
to 1994, he fell within the statutory definition of a sex offender because according to
K.S.A. 2015 Supp. 22-4902(b), the term "'[s]ex offender' includes any person who: . . .
(7) has been convicted of an offense that is comparable to any crime defined in this
subsection, or any out of state conviction for an offense that under the laws of this state
would be an offense defined in this subsection." Consequently, the State argued that
Moss must register as a sex offender in Kansas because his conviction for attempted rape
was a comparable offense in Kansas and this portion of the sex offender definition does
not place a "time/date limitation on the out of state conviction."

After considering the parties' briefs in this matter, the district court denied Moss'
motion to dismiss, finding that Moss was obligated to register as a sex offender under
KORA. The district judge explained:

"I would have to say that I do agree with [Moss' attorney] to this extent: That if [Moss']
conviction for attempted rape in 1991 had originally occurred in Kansas, he would not be
a sex offender for purposes of KORA. However, when you look at KSA 22-4902-B,
subsection 4, and I read each of those subsections as being separate and distinct, 4 defines
an offender as any person who has been required to register under out-of-state law, and I
cannot ignore the fact that Missouri, per their law, as set forth in Doe v. Toelke, . . . does
require [Moss] to register in—if he were still in Missouri. So that means he is a person
who has been required to register under an out-of-state law. Missouri notified Kansas of
their state's requirement for him to register as a sex offender, and we were following their
notification. I do think that this pulls in full faith and credit, that we cannot ignore
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Missouri law or Missouri's authority to still hold him as a sex offender and still require
him to register. Anyway, since Missouri notified us of that requirement, that is why we
pulled Mr. Moss in and told him to register. His failure to register or follow the
registration requirements of 22-4903, that sets out what you have to do in the penalty
section, so he is required to register there.
"I did review [Moss'] privileges and immunity's [sic] argument, that [he] should
not be treated differently than a Kansas resident. However, I believe that Missouri's
requirement for Mr. Moss to register has to do with a Federal Sex Offender Registration
Notification Act . . . and I believe that the purpose is to prevent sex offenders from
moving from the state that requires them to register to a state that would not have
required them to register. That the original convicting jurisdiction maintains its hold on
those defendants that are required to register no matter where they move. I think that is
the intent behind subsection 4 of KSA 22-4902(b). You can't move to another state just to
avoid the registration requirements of the state where you were. If that other state
required you to register, wherever you move, . . . you have to register under their
registration requirements also."

On appeal, Moss contends the district court premised its denial of his motion to
dismiss on an erroneous interpretation of KORA.

Our standard of review provides that interpretation of a statute is a question of law
over which we exercise unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12,
cert. denied 135 S. Ct. 91 (2014). The most fundamental rule of statutory construction is
that the intent of the legislature governs if that intent can be ascertained. State v.
Williams, 298 Kan. 1075, 1079, 319 P.3d 528 (2014). An appellate court must first
attempt to ascertain legislative intent through the statutory language enacted, giving
common words their ordinary meanings. Where there is no ambiguity in the statutory
language, the court need not resort to statutory construction; only if the statute's language
or text is unclear or ambiguous does the court use canons of construction or legislative
history to construe the legislature's intent. State v. Phillips, 299 Kan. 479, 495, 325 P.3d
1095 (2014).
6

To successfully prosecute Moss for failing to register under KORA, the State was
required to prove that he qualifies as an offender, as that term is defined in K.S.A. 2015
Supp. 22-4902, and that his failure to register occurred during the time period he was
required to register. See State v. Fredrick, 292 Kan. 169, 173, 251 P.3d 48 (2011). KORA
requires the registration of offenders and included within the definition of an
"'[o]ffender'" are (1) "sex offender[s]," (2) "violent offender[s]," (3) "drug offender[s],"
(4) "any person who has been required to register under out of state law or is otherwise
required to be registered," and (5) "any person required by court order to register for an
offense not otherwise required as provided in [KORA]." See K.S.A. 2015 Supp. 22-
4902(a). Offenders must comply with the registration and reporting requirements set forth
in K.S.A. 2015 Supp. 22-4905. The duration of an offender's registration requirement
depends on the offense of conviction, and offenders, such as Moss, who were convicted
of attempted rape in another jurisdiction must register for "the length of time required by
the out of state jurisdiction or by [KORA], whichever length of time is longer." See
K.S.A. 2014 Supp. 22-4906(d)(1), (d) (12), and (k).

While Moss concedes that he is an offender because he is required to register
under out-of-state law, he contends the district court erred when it found he must also
comply with the registration requirements applicable to sex offenders. In particular, Moss
asserts that KORA encompasses four categories of offenders: "'(1) a sex offender; (2) a
violent offender; (3) a drug offender'"; and (4) a mere offender, i.e., "'any person who has
been required to register under out of state law or is otherwise required to be registered,'"
and "any person required by court order to register for an offense not otherwise required
as provided in [KORA]." See K.S.A. 2015 Supp. 22-4902(a). As a result, Moss insists he
was not obligated to comply with the registration requirements applicable to sex
offenders because he does not "meet the definition of a 'sex offender' as [] KORA defines
it."


7

For purposes of this appeal, KORA defines sex offender as any person who:

"(1) On or after April 14, 1994, is convicted of any sexually violent crime;
. . . .
"(6) is convicted of an attempt, conspiracy or criminal solicitation, as defined in
K.S.A. 21-3301, 21-3302 or 21-3303, prior to their repeal, or K.S.A. 2015 Supp. 21-
5301, 21-5302, 21-5303, and amendments thereto, of an offense defined in this
subsection; or
"(7) has been convicted of an offense that is comparable to any crime defined in
this subsection, or any out of state conviction for an offense that under the laws of this
state would be an offense defined in this subsection." K.S.A. 2015 Supp. 22-4902(b).

The term sexually violent crime includes:

"(1) Rape, as defined in K.S.A. 21-3502, prior to its repeal, or K.S.A. 2015 Supp.
21-5503, and amendments thereto;
. . . .
"(15) any conviction or adjudication for an offense that is comparable to a
sexually violent crime as defined in this subsection, or any out of state conviction or
adjudication for an offense that under the laws of this state would be a sexually violent
crime as defined in this subsection;
"(16) an attempt, conspiracy or criminal solicitation, as defined in K.S.A. 21-
3301, 21-3302 or 21-3303, prior to their repeal, or K.S.A. 2015 Supp. 21-5301, 21-5302,
21-5303, and amendments thereto, of a sexually violent crime, as defined in this
subsection; or
"(17) any act which has been determined beyond a reasonable doubt to have been
sexually motivated, unless the court, on the record, finds that the act involved non-
forcible sexual conduct, the victim was at least 14 years of age and the offender was not
more than four years older than the victim. As used in this paragraph, 'sexually motivated'
means that one of the purposes for which the defendant committed the crime was for the
purpose of the defendant's sexual gratification." K.S.A. 2015 Supp. 22-4902(c).

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As it argued in the district court, the State asserts "[t]here is no such category [of]
just plain 'offender' in KORA." The State also claims that Moss meets KORA's definition
of a sex offender by virtue of K.S.A. 2015 Supp. 22-4902(b)(7), because his Missouri
conviction for attempted rape is a comparable offense, which "falls squarely within th[e
KORA's] definition of a sexually violent crime."

Moss disputes this interpretation of K.S.A. 2015 Supp. 22-4902(b), however,
because according to Moss, even though KORA's definition of a "sexually violent crime"
encompasses his attempted rape conviction, the requirement that an offense be
comparable incorporates not only the nature of the offense, but also the qualification in
K.S.A. 2015 Supp. 22-4902(b)(1) that the conviction for such offense occurred "on or
after April 14, 1994."

Although the State's argument regarding KORA's application to three categories of
offenders, rather than the four suggested by Moss, appears to comport with the structure
of KORA as a whole, it is unnecessary for us to resolve this issue because Moss clearly
qualifies as a sex offender under K.S.A. 2015 Supp. 22-4902(b). In fact, reading KORA's
definition of sex offender in the manner urged by Moss contravenes basic principles of
statutory construction because such an interpretation alters the plain and unambiguous
language of the statute. Although the legislature placed a date qualifier upon convictions
for sexually violent crimes that occur in Kansas, the legislature opted not to place such a
qualification upon comparable out-of-state convictions. Had the legislature wished to
exempt offenders who received out-of-state convictions prior to April 14, 1994, from
KORA's registration requirements, it could have done so by including a qualification
similar to subsection (b)(1) within subsection (b)(7). When a statute is plain and
unambiguous, however, an appellate court should refrain from reading something into the
statute that is not readily found in its words. State v. Brooks, 298 Kan. 672, 685, 317 P.3d
54 (2014).

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Moreover, when construing statutes to determine legislative intent, appellate
courts must consider various provisions of an act in pari materia with a view of
reconciling and bringing the provisions into workable harmony whenever possible. State
v. Coman, 294 Kan. 84, 93, 273 P.3d 701 (2012). As the State asserts, K.S.A. 2015 Supp.
22-4906(k), which defines an offender's duration of registration, further supports this
interpretation of K.S.A. 2015 Supp. 22-4902(b). Specifically, K.S.A. 2015 Supp. 22-
4906(k) provides:

"For any person moving to Kansas who has been convicted or adjudicated in an
out of state court, or who was required to register under an out of state law, the duration
of registration shall be the length of time required by the out of state jurisdiction or by the
Kansas offender registration act, whichever length of time is longer. The provisions of
this subsection shall apply to convictions or adjudications prior to June 1, 2006, and to
persons who moved to Kansas prior to June l, 2006, and to convictions or adjudications
on or after June 1, 2006, and to persons who moved to Kansas on or after June l, 2006."
(Emphasis added.)

K.S.A. 2015 Supp. 22-4906(k) undermines Moss' proposed interpretation of
K.S.A. 2015 Supp. 22-4902(b) because if the legislature intended for the time stricture
contained within K.S.A. 2015 Supp. 22-4902(b)(1) to be incorporated into K.S.A. 2015
Supp. 22-4902(b)(7), K.S.A. 2015 Supp. 22-4906(k) would need to state "prior to June 1,
2006[, but after April 14, 1994, if the conviction or adjudication was for a sexually
violent crime.]"

We also find support for our interpretation of KORA's provisions by reviewing
caselaw interpreting Idaho's comparable offender registration statutes. Notably, in State v.
Dickerson, 142 Idaho 514, 129 P.3d 1263 (Ct. App. 2006), the Idaho Court of Appeals
rejected a similar challenge to a former version of Idaho's Sex Offender Registration
Notification and Community Right-to-Know Act (SORNCA). Dickerson claimed, in part,
that the district court erred when it refused to dismiss a failure to register charge based on
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its determination that SORNCA encompassed his 1990 Washington conviction for child
rape in the second degree. At the time, SORNCA defined an offender as "'an individual
convicted of an offense listed and described in section 18-8304, Idaho Code, or a
substantially similar offense under the laws of another state or in a federal, tribal or
military court or the court of another country.' [Citation omitted.]" 142 Idaho at 516. The
then-effective version of Section 18-8304 of the Idaho Code provided:

"'(1) The provisions of this chapter shall apply to any person who:
. . . .
"'(a) On or after July 1, 1993, is convicted of the crime, or an attempt, a
solicitation, or a conspiracy to commit a crime provided for in [various Idaho Code
sections defining sex offenses].
"'(b) Enters the state on or after July 1, 1993, and who has been convicted of any
crime, an attempt, a solicitation or a conspiracy to commit a crime in another state,
territory, commonwealth, or other jurisdiction of the United States, including tribal courts
and military courts, that is substantially equivalent to the offenses listed in subsection
(1)(a) of this section.
"'(c) Pleads guilty to or has been found guilty of a crime covered in this chapter
prior to July 1, 1993, and the person, as a result of the offense, is incarcerated in a county
jail facility or a penal facility or is under probation or parole supervision, on or after July
1, 1993.' [Citation omitted.]" 142 Idaho at 516.

Dickerson maintained that he was not required to register because the "same time
strictures in subsection (a) that triggered the registration requirement for an Idaho
conviction should be deemed incorporated into subsection (b) for foreign convictions."
142 Idaho at 517. The Idaho Court of Appeals disagreed:

"Here, we find no ambiguity in the statutory language. Subsection (a) clearly
states that if the conviction was for a violation of Idaho law, the registration requirement
applies only to convictions occurring on or after July 1, 1993, but subsection (b) contains
no such temporal limitation for convictions from another jurisdiction. It is not within our
purview to add a temporal limitation to subsection (b) that the legislature did not place
11

there. Rather, we must give effect to the clear legislative expression. If a statute as written
is socially or otherwise unsound, the power to correct it is legislative, not judicial.
[Citation omitted.]" 142 Idaho at 517.

Subsequently, in State v. Yeoman, 149 Idaho 505, 236 P.3d 1265 (2010), the Idaho
Supreme Court addressed a similar argument regarding a later version of Idaho Code §
18-8304, and the court reached the same conclusion the Idaho Court of Appeals reached
in Dickerson. When Yeoman was decided, Idaho Code § 18-8304(1)(c) applied to any
individual who:

"'Has been convicted of any crime, an attempt, a solicitation or a conspiracy to
commit a crime in another state, territory, commonwealth, or other jurisdiction of the
United States, including tribal courts and military courts, that is substantially equivalent
to the offenses listed in subsection (1)(a) of this section and was required to register as a
sex offender in any other state or jurisdiction when he established permanent or
temporary residency in Idaho.'" 149 Idaho at 506.

Subsection (1)(a) of the statute applied to any individual who committed one of the listed
sex offenses "'[o]n or after July 1, 1993.'" 149 Idaho at 506-07. Accordingly, Yeoman
contended that his 1984 Washington conviction for rape was not substantially equivalent
to "'the offenses listed in subsection (1)(a)'" because his offense did not occur "'[o]n or
after July 1, 1993.'" 149 Idaho at 507. The Idaho Supreme Court rejected his argument:

"When construing Idaho Code § 18-8304 as a whole, subsection (1)(c) is not
limited to crimes for which the person was convicted on or after July 1, 1993. Subsection
(1)(c) incorporates by reference 'the offenses listed in subsection (1)(a) of this section.'
(Emphasis added.) Subsection (1)(a) applies to any person who '[o]n or after July 1, 1993,
is convicted of the crime, or an attempt, a solicitation, or a conspiracy to commit a crime
provided for in section . . . . Subsection (1)(c) does not incorporate by reference the
convictions listed in subsection (1)(a); it incorporates by reference the offenses listed. The
offenses are listed by reference to their respective code sections. The date of conviction
12

for one of those offenses is not part of the definition of the crime as set forth in the code
section. The date a person was convicted of a crime does not become part of the
definition of the offense for which he or she was convicted." 149 Idaho at 507.

Similar to the statutory interpretation employed in Dickerson and Yeoman, we find
KORA's plain and unambiguous language resolves Moss' challenge to the district court's
interpretation of K.S.A. 2015 Supp. 22-4902(b).

Federal law and the laws of other jurisdictions provide insight into the legislative
intent behind KORA's treatment of the various types of offenders. As explained above,
KORA includes within its definition of "'offender' . . . any person who has been required
to register under out of state law or is otherwise required to be registered." See K.S.A.
2015 Supp. 22-4902(a)(4). Moss does not dispute the fact that he qualifies as an
individual who (1) "has been required to register under out of state law," i.e., Missouri's
Sex Offender Registration Act (SORA), and (2) is "otherwise required to be registered"
by virtue of the Sexual Offenders Registration and Notification Act (SORNA), Title I of
the Adam Walsh Child Protection and Safety Act of 2006, 42 U.S.C. § 16901 (2012) et
seq. See K.S.A. 2015 Supp. 22-4902(a)(4).

SORNA, enacted on July 27, 2006, sought to address "'loopholes and
deficiencies'" existent within the "patchwork" of federal and state registration systems by
establishing comprehensive minimum national registration-system standards. See 42
U.S.C. § 16901 (2012); United States v. Kebodeaux, 570 U.S. ___, ___, 133 S. Ct. 2496,
2505, 186 L. Ed. 2d 540 (2013). SORNA requires sex offenders to "register, and keep the
registration current, in each jurisdiction where the offender resides, where the offender is
an employee, and where the offender is a student." 42 U.S.C. § 16913(a) (2012). The
term sex offender encompasses any "individual who was convicted of a sex offense,"
which, for purposes of this appeal, is defined as "a criminal offense that has an element
13

involving a sexual act or sexual contact with another" and any attempt or conspiracy to
commit such an offense. 42 U.S.C. § 16911(1), (5)(A)(i) and (v) (2012).

The offense of conviction determines the frequency with which an offender must
register. 42 U.S.C. § 16911(2)-(4) (2012) (defining sex offender tiers); 42 U.S.C. §
16915(a) (2012) (duration of the registration requirement). While the applicable
registration period may be reduced if the offender maintains a clean record for a
sufficient number of years, Tier I offenders must register annually for 15 years, Tier II
sex offenders must register every 6 months for 25 years, and Tier III sex offenders must
register every 3 months for life. See 42 U.S.C. § 16911(2)-(4) (2012); 42 U.S.C. §
16915(a)-(b) (2012); 42 U.S.C. § 16916 (2012) (describing periodic in person verification
requirements). Any person who (1) "is required to register under [SORNA]," (2) was
convicted of a federal sex offense or "travels in interstate or foreign commerce" and (3)
"knowingly fails to register or update a registration as required by [SORNA]" is guilty of
a crime punishable by a fine and/or imprisonment for up to 10 years. 18 U.S.C. § 2250(a)
(2012).

Importantly, it appears that SORNA's registration requirement applies
retroactively to all sex offenders, such as Moss, who were convicted prior to the date the
Act went into effect. But see Carr v. United States, 560 U.S. 438, 130 S. Ct. 2229, 176 L.
Ed. 2d 1152 (2010) (SORNA section, i.e., 18 U.S.C. § 2250[a] [2012]), imposing federal
criminal liability for failure to adhere to registration requirements does not apply to sex
offenders whose interstate travel occurred before SORNA's effective date). SORNA
grants the United States Attorney General the authority to "specify the applicability of
[SORNA's] requirements" to such offenders and to "prescribe rules for the[ir]
registration." 42 U.S.C. § 16913(d) (2012). See Reynolds v. United States, 565 U.S. ___,
___, 132 S. Ct. 975, 978, 181 L. Ed. 2d 935 (2012) (SORNA mandated registration
requirements do not apply to "pre-Act offenders until the Attorney General specifies that
they do apply.").
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On February 28, 2007, the United States Attorney General promulgated an Interim
Rule which specified that the "requirements of [SORNA] apply to all sex offenders,
including sex offenders convicted of the offense for which registration is required prior to
the enactment of that Act." 72 Fed. Reg. 8894 (2007) (codified at 28 CFR § 72.3 [2015]).
Then, 3 months later, the Attorney General published the Sex Offender Sentencing,
Monitoring, Apprehending, Registering, and Tracking (SMART) Guidelines to "'interpret
and implement SORNA,' [citations omitted,]" and these guidelines reiterated "'the interim
rule applying SORNA to pre-Act offenders.' [Citation omitted.]" United States v. Brewer,
766 F.3d 884, 886 (8th Cir. 2014). See 72 Fed. Reg. 30,210 (2007); 73 Fed. Reg. 38,030
(2008). The Interim Rule was finalized on December 29, 2010, with the issuance of a
Final Rule, which went into effect on January 28, 2011. 75 Fed. Reg. 81849 (2010).

Although SORNA, by its plain meaning, imposes an independent duty upon sex
offenders to register, the states are not obligated to implement SORNA's terms. See 42
U.S.C. § 16913 (2012); 42 U.S.C. § 16925(d) (2012). Instead, SORNA encourages states
to adopt its provisions by making federal funding contingent upon substantial
implementation of the Act. 42 U.S.C. § 16925(d) (2012). According to the website for the
United States Department of Justice's SMART Office (SMART Office), Kansas is among
the 20 states and U.S. territories which, to date, have successfully implemented SORNA.
See U.S. Dep't of Justice, SMART Office, http://www.smart.gov/sorna.htm (identifying
17 states and 3 territories as having "substantially implemented" SORNA). In fact, on
July 19, 2011, the SMART Office published a "SORNA Substantial Implementation
Review" for the State of Kansas, wherein it concluded that Kansas has "substantially
implemented SORNA." U.S. Dep't of Justice, SMART Office, SORNA Substantial
Implementation Review State of Kansas—(July 19, 2011) http://www.smart.gov/
sorna.htm.

Of relevance to this appeal, the Missouri Supreme Court has determined that sex
offenders subject to SORNA must register in Missouri irrespective of Missouri law. See
15

Doe v. Toelke, 389 S.W.3d 165 (Mo. 2012). In fact, Moss was not required to register as
a sex offender under Missouri's SORA, which became effective on January 1, 1995,
based solely upon his 1991 conviction because Article I, section 13 of the Missouri
Constitution prohibits the enactment of laws that are retrospective in their operation. See
389 S.W.3d at 166-67. Similar to KORA, however, SORA specifically provides that
"'[a]ny person who . . . has been or is required to register in another state or has been or is
required to register under tribal, federal or military law'" must register in Missouri. See
389 S.W.3d at 167.

While this section appears to violate Missouri's constitutional ban on retroactive
legislation, in Doe v. Keathley, 290 S.W.3d 719, 720-21 (Mo. 2009), the Missouri
Supreme Court determined that SORNA imposes an independent federally mandated
registration requirement that "operates irrespective of any allegedly retrospective state
law." According to the Missouri Supreme Court: "When . . . the state registration
requirement is based on an independent federal registration requirement, article I, section
13 [of the Missouri Constitution] is not implicated because the state registration
requirement is not based solely on the fact of a past conviction." Toelke, 389 S.W.3d at
167.

On the other hand, Indiana and Maryland have determined, based on 42 U.S.C. §
16925(b) (2012), which provides a remedy for conflicts between SORNA's provisions
and a state constitution, that their state constitutions need not yield to SORNA. See
Andrews v. State, 978 N.E.2d 494 (Ind. App. 2012); Dep't of Pub. Safety v. Doe, 439 Md.
201, 94 A.3d 791 (2014). Notably, however, the Missouri Supreme Court rejected the
notion that SORNA must yield to the Missouri Constitution's prohibition against
retrospective laws due to 42 U.S.C. § 16925(b) (2012). Roe v. Replogle, 408 S.W.3d 759,
768-69 (Mo. 2013).

16

We find that, as in Missouri, Moss must register as a sex offender in Kansas and
comply with KORA's enhanced registration requirements for such offenders as a matter
of federal law and KORA's inclusion of "any person who has been required to register
under out of state law or is otherwise required to be registered" within the definition of an
offender. See K.S.A. 2015 Supp. 22-4902(a)(4). Unlike Indiana and Maryland, imposing
such a requirement on Moss does not violate the Kansas Constitution. The Kansas
Constitution contains "no echoing or comparable provision" to the federal Ex Post Facto
Clause. State v. Todd, 299 Kan. 263, 276, 323 P.3d 829, cert. denied 135 S. Ct. 460
(2014). And our Supreme Court recently concluded that the 2011 amendments to
KORA's offender registration scheme are nonpunitive and do not violate the federal Ex
Post Facto Clause as applied to sex offenders. State v. Petersen-Beard, 304 Kan. 192, ___
P.3d ___, 2016 WL 1612851, at *15 (2016).

The legislature's decision not to place a date qualifier upon comparable out-of-
state offenses may be a byproduct of its attempt to give full faith and credit to the laws of
other jurisdictions and to obtain the federal funding contingent upon implementation of
SORNA's registration and reporting regime. In fact, reading K.S.A. 2015 Supp. 22-
4902(a) and K.S.A. 2015 Supp. 22-4902(b)(7) in pari materia with a view of reconciling
and bringing the provisions into workable harmony demonstrates that the legislature's
decision not to place a time stricture upon comparable out-of-state sex offenses was a
deliberate choice aimed at ensuring that offenders who are required by federal law and/or
the law of another state to register as a sex offender register as such in Kansas. Our courts
must construe statutes to avoid unreasonable or absurd results, and we presume that the
legislature does not intend to enact meaningless legislation. State v. Frierson, 298 Kan.
1005, 1013, 319 P.3d 515 (2014). Moss' interpretation of KORA would yield the
incongruous result of classifying him as a mere offender when he is obligated to register
as a sex offender under both federal and Missouri law.

17

We hold the district court did not err when it found that Moss was required to
register as a sex offender in Kansas because Moss is a sex offender as provided in
KORA's definition of such an offender.

DOES THE KANSAS OFFENDER REGISTRATION ACT INFRINGE UPON MOSS'
CONSTITUTIONALLY PROTECTED RIGHT TO TRAVEL?

As an alternative argument, Moss contends that interpreting K.S.A. 2015 Supp.
22-4902 in a manner which obligates him to register as a sex offender, rather than a mere
offender, renders KORA constitutionally infirm because requiring an out-of-state
offender to comply with the enhanced registration requirements applicable to sex
offenders when a Kansas offender with a conviction predating April 14, 1994, is not
obligated to do so violates both the Privileges or Immunities and Equal Protection
Clauses of the Fourteenth Amendment.

While the State argues that Moss did not properly preserve his Equal Protection
claim because he did not raise this issue in the district court, his argument is, in essence,
that KORA infringes upon his right to travel and this contention involves aspects of both
the Privileges or Immunities and Equal Protection Clauses. As a result, we will consider
the merits.

Citizens enjoy a federal constitutional right to engage in interstate travel, which
state law or local regulation may not unreasonably burden. State v. Cooper, 48 Kan. App.
2d 671, 675, 301 P.3d 331 (2013). The United States Supreme Court has determined:

"The 'right to travel' . . . embraces at least three different components. [1] It
protects the right of a citizen of one State to enter and to leave another State, [2] the right
to be treated as a welcome visitor rather than an unfriendly alien when temporarily
present in the second State, and, [3] for those travelers who elect to become permanent
18

residents, the right to be treated like other citizens of that State." Saenz v. Roe, 526 U.S.
489, 500, 119 S. Ct. 1518, 143 L. Ed. 2d 689 (1999).

Moss' argument involves the third aspect of the right to travel, i.e., his right as a newly
arrived citizen to enjoy the same privileges and immunities as other Kansas citizens.

Once again, precedent from Idaho is helpful to the analysis. As the Idaho Court of
Appeals explained in State v. Dickerson, 142 Idaho 514, 518-19, 129 P.3d 1263 (Ct. App.
2006):

"Historically, when evaluating the constitutionality of laws that affect the right to
travel, the Supreme Court conducted its analysis under the Equal Protection Clause of the
Fourteenth Amendment. See New York v. Soto-Lopez, 476 U.S. 898, 106 S. Ct. 2317, 90
L. Ed. 2d 899 (1986) (plurality opinion); Mem'l Hosp. v. Maricopa County, 415 U.S. 250,
258, 94 S. Ct. 1076, 1082, 39 L. Ed. 2d 306, 314-15 (1974); Shapiro [v. Thompson], 394
U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 [(1969), overruled in part on other grounds by
Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974)]. In the 1999
Saenz decision, however, the Court redirected the constitutional analysis to the Privileges
and Immunities Clause. . . . The Court thereby revived the Privileges and Immunities
Clause from nearly 130 years of obscurity. [Citation omitted.]
. . . .
"While the Saenz case altered the constitutional underpinnings of the right to
travel, it appears to have caused little change in the analyses traditionally employed under
the Equal Protection Clause. As in equal protection analysis, the Court first examined
whether the law created a classification that burdened the right to travel, and upon finding
that it did, then analyzed the sufficiency of the state's justification for the law and
considered whether the classification adequately advanced that state interest."

Despite Moss' contention to the contrary, KORA does not create a classification
that burdens the right to travel. "The United States Supreme Court has generally found
classifications burdensome if they penalize migration or create fixed, permanent
distinctions among citizens." Dickerson, 142 Idaho at 519. But KORA does not contain
19

such a classification because it does not discriminate on the basis of citizenship or the
duration of a citizen's residency. Instead, KORA classifies sex offenders based upon the
location in which they obtained their conviction. A lifelong Kansas citizen who commits
attempted rape in Missouri while temporarily present there must comply with the same
registration requirements as Moss regardless of whether his or her conviction occurred
prior to 1994.

Moreover, assuming KORA creates a classification that burdens the right to travel,
this burden appears to pass constitutional muster. The level of scrutiny we must apply to
make this determination, however, remains unclear. In Saenz, the United States Supreme
Court invoked strict scrutiny to determine the constitutionality of California's welfare
regime, but as noted by the Idaho Court of Appeals, the Court did not "indicate whether a
less stringent standard might apply outside the facts of that case." Dickerson, 142 Idaho
at 520. Additionally, in previous cases wherein the United States Supreme Court utilized
an equal protection analysis to review this issue, the Court "drew a distinction between
laws that penalize migration and those that create fixed distinctions," i.e., the Court
applied strict scrutiny with respect to the former and "as to the latter, it declined to say
whether strict scrutiny should apply, instead holding that the statutes at issue were not
even rationally related to a legitimate state interest." 142 Idaho at 520 (as to the former
citing New York v. Soto-Lopez, 476 U.S. 898, 904, 106 S. Ct. 2317, 90 L. Ed. 2d 899
[1986]; Shapiro v. Thompson, 394 U.S. 618, 89 S. Ct. 1322, 22 L. Ed. 2d 600 [1969],
overruled in part on other grounds by Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347,
39 L. Ed. 2d 662 [1974]; as to the latter citing Hooper v. Bernalillo County. Assessor,
472 U.S. 612, 618, 105 S. Ct. 2862, 86 L. Ed. 2d 487 [1985]; Zobel v. Williams, 457 U.S.
55, 60-61, 102 S. Ct. 2309, 72 L. Ed. 2d 672 [1982]).

Nevertheless, we find that KORA is constitutional because classifying sex
offenders based upon the location of their conviction serves a compelling governmental
interest, i.e., it furthers "the legislative purpose of KORA, which is 'to protect the public
20

from sex offenders as a class of criminals who are likely to reoffend.' [Citations
omitted]." State v. Fredrick, 292 Kan. 169, 173, 251 P.3d 48 (2011). As the State asserts:
"It is a reasonable fit for Moss to be required to register . . . in order to provide minimal
protection to the community against someone likely to commit another sexually
motivated crime—in other words, the degree of [any] discrimination exacted is
substantially related to the threatened danger. [Citation omitted.]"

The constitutionality of KORA's focus upon the location of a sex offender's
conviction, rather than his or her residency status, is illustrated by the Idaho Supreme
Court's decision in Yeoman, wherein the court determined that the later version of
SORNCA did not place an unconstitutional burden upon the right to travel, and the Idaho
Court of Appeals decision in Dickerson, wherein the court determined that the former
version of SORNCA infringed upon this right because it differentiated between sex
offenders based upon the date on which the offender entered the State of Idaho to
establish or reestablish a residence. See State v. Yeoman, 149 Idaho 505, 507-09, 236
P.3d 1265 (2010); Dickerson, 142 Idaho at 517.

In Dickerson, the Idaho Court of Appeals addressed whether "the disparity in the
statute's treatment of in-state offenders versus those who were convicted elsewhere and
subsequently moved to Idaho violated [the third component of Dickerson's] constitutional
right to travel." 142 Idaho at 517. According to the Idaho Court of Appeals:

"The former [version of SORNCA] created a disparity between sex offenders
who moved to Idaho after mid-1993 and offenders who were longer-term residents. A
longer term resident with a pre-1993 conviction from Idaho or elsewhere did not have to
register, while a person with such a conviction who moved to Idaho after June 1993 was
required to do so, no matter how old the conviction. Anomalously, a person who had
been convicted before 1993 in a foreign court (including a tribal court or federal court)
while residing in Idaho did not have to register if he remained an Idaho resident, but if the
individual moved out of state and subsequently returned to live in Idaho after 1993, the
21

duty to register arose. Thus, whether the Act imposed a duty to register upon a sex
offender turned upon whether and on what date the individual moved to Idaho." 142
Idaho at 518.

The Idaho Court of Appeals ultimately found that SORNCA created a
classification that penalized migration and created fixed, permanent distinctions between
citizens:

"In this case, [SORNCA] has elements of both types of classifications. It
penalizes persons with pre-1993 convictions who moved to the state after 1993 by
requiring registration when it is not required of like offenders who are longer-term
residents, and it creates fixed, permanent distinctions between sex offenders based solely
upon the date when they established residency in Idaho. Thus, [SORNCA] creates a
classification that burdens the right to travel." 142 Idaho at 519-20.

The court then determined that the classifications created by SORNCA were
unconstitutional because "the State's interest in apprehending re-offending sex offenders
was not rationally advanced by a classification that differentiated between offenders
based solely upon their date of entry into the state." 142 Idaho at 522.

By contrast, however, in Yeoman, the Idaho Supreme Court addressed whether the
later version of SORNCA, which eliminated the previous classification premised upon
date of entry into the state, violated the third aspect of Yeoman's right to travel and his
rights under the Equal Protection Clause of the Fourteenth Amendment. In particular,
Yeoman complained, in a manner similar to Moss, that SORNCA placed an
unconstitutional burden upon his right to travel and treated him differently from similarly
situated Idaho sex offenders because "an Idaho resident would not be required to register
as a sex offender based upon a conviction for rape in Idaho that occurred prior to July 1,
1993, but he was required to register as a sex offender upon moving to Idaho." 149 Idaho
at 508. The Idaho Supreme Court disagreed:
22

"Defendant's claim that he is treated differently from a similarly situated Idaho
sex offender is faulty. He was not required to register in Idaho as a sex offender simply
because he had a prior conviction for the crime of rape when he moved here. He was
required to register because, in addition to the rape conviction, he 'was required to
register as a sex offender in [Washington] when he established permanent or temporary
residency in Idaho.' Idaho Code § 18–8304(1)(c). Had he not been required to register in
Washington, he would not have been required to register once he moved here.
"Because he was required to register while residing in Washington, it is difficult
to see how the requirement that he register in this State in any way infringed upon his
right to travel to or become a resident of this State. '[M]oving from one jurisdiction to
another entails many registration requirements required by law which may cause some
inconvenience, but which do not unduly infringe upon anyone's right to travel.' [Citation
omitted.]
"Nevertheless, even assuming that the registration requirement of Idaho Code §
18-8304(1)(c) has the effect of imposing a penalty on [Yeoman]'s right to change his
residence to Idaho, it will be upheld if it is shown necessary to promote a compelling
state interest. Saenz v. Roe, 526 U.S. 489, 499, 119 S. Ct. 1518, 1524-25, 143 L. Ed. 2d
689, 701-02 (1999). 'The state has a strong interest in preventing future sexual offenses
and alerting local law enforcement and citizens to the whereabouts of those that could
reoffend.' [Citation omitted.] This is 'a compelling and strong interest' that 'outweighs any
burden imposed.' [Citation omitted.] The requirement that [Yeoman] register as a sex
offender upon relocating to Idaho did not violate his right to travel.
"[Yeoman] also contends on appeal that the registration requirement denied him
the equal protection of the law. As stated above, he has not pointed to any similarly
situated category of sex offenders who are not required to register." 149 Idaho at 508-09.

Unlike Dickerson and similar to Yeoman, KORA does not discriminate against
Kansas citizens based upon the date of their arrival in Kansas. KORA focuses upon the
location of the sex offender's conviction and obligates any Kansas citizen with an out-of-
state conviction that predates April 14, 1994, to register due to his or her obligation to
register under SORNA and/or the previous place of residence. This classification clearly
advances the State's compelling and strong interest in protecting the public from sex
offenders. Kansas cannot insure that those convicted of sex offenses in other states prior
23

to 1994 received sufficient punishment and treatment to ensure their safe reentry into
society, as it can with convictions that were addressed by its own penal system.

Moreover, Dickerson was decided prior to the enactment of the federal SORNA,
and as the district court found, Moss' obligation to register in Kansas is premised upon
SORNA, which explicitly encourages the States to draft their registration and reporting
regimes in a manner which tracks the interstate movement of sex offenders, regardless of
the date on which the offender was convicted. While the United States Supreme Court
has consistently held that Congress may not authorize the States to violate the Fourteenth
Amendment to the United States Constitution, several jurisdictions have considered
whether SORNA's registration requirements unreasonably burden the right to travel and
determined that SORNA does not implicate this right. See Saenz, 526 U.S. at 507-08; see
also, e.g., United States v. Shenandoah, 595 F.3d 151, 162-63 (3d Cir. 2010) ("[The
defendant] may travel interstate, but when he does, must register in the new state, while a
convicted sex offender who remains within a state need only remain properly registered
therein. There is simply no Constitutional violation. Moreover, moving from one
jurisdiction to another entails many registration requirements required by law which may
cause some inconvenience, but which do not unduly infringe upon anyone's right to
travel. The essential part of the charged crime in this matter is the failure to register; [the
defendant's] right to travel is incidental to this obligation, and not constitutionally
offended."), cert. denied 560 U.S. 974 (2010), abrogated on other grounds by Reynolds,
132 S. Ct. 975 (2012); United States v. Ambert, 561 F.3d 1202, 1210 (11th Cir. 2009)
("The requirement to update a registration under SORNA is undoubtedly burdensome;
however, the government's interest in protecting others from future sexual offenses and
preventing sex offenders from subverting the purpose of the statute is sufficiently
weighty to overcome the burden. This statute does not violate [the defendant's] right to
travel.").

24

Significantly, SORNA has also survived constitutional challenges involving the
Equal Protection Clause of the Fourteenth Amendment and the Due Process Clause of the
Fifth Amendment. See, e.g., United States v. Juvenile Male, 670 F.3d 999, 1009-10 (9th
Cir. 2012) ("Because defendants in this case have failed to establish membership in a
recognized protected class, SORNA is subject to rational basis review for the purpose of
equal protection analysis. SORNA's language and legislative history clearly indicate the
legislative purpose for which it was enacted. [Citations omitted.] We have held that
protecting our communities is a legitimate legislative purpose. [Citation omitted.] The
Supreme Court has also held that 'there is no doubt that preventing danger to the
community is a legitimate regulatory goal.' [Citation omitted.] Thus, SORNA's
requirements satisfy rational basis review and do not violate the Equal Protection
Clause."), cert. denied 133 S. Ct. 234 (2012); United States v. Lafferty, 608 F. Supp. 2d
1131, 1144 (D.S.D. 2009) ("Sex offenders are not a suspect or quasi-suspect class.
[Citation omitted.] . . . Nor can it be said that SORNA's registration requirement
implicate a fundamental constitutional right. [Citations omitted.] Therefore, the critical
question is whether SORNA, and its registration provisions, are rationally related to a
legitimate interest. The Court is satisfied that they are."); United States v. Benevento, 633
F. Supp. 2d 1170, 1211 (D. Nev. 2009) ("Benevento cites no case for the proposition that
sex offenders constitute a suspect or quasi-suspect class. Accordingly, [18 U.S.C. § 2250
which requires sex offenders traveling in interstate commerce to register and update their
registration is subject to rational basis review. Section 2250 is rationally related to the
legitimate government interest in protecting the public from sex offenders and offenders
against children by creating a comprehensive national sex offender registry to track the
whereabouts of sex offenders, and prevent sex offenders from circumventing the
registration requirements by moving from state to state.").

We conclude that KORA's classification of sex offenders based upon the location
of their conviction does not unconstitutionally burden Moss' right to travel or deprive him
of equal protection under the law.
25

Affirmed.