State v. Kelly
2012 Mo. App. LEXIS 559
| Mo. Ct. App. | 2012Background
- Appellant Kelly pled guilty in 1998 to first-degree sexual misconduct and was required to register as a sex offender under §589.400.
- Prior to Dec 31, 2009, Kelly resided with Lisalda at her St. Charles apartment and properly registered that address.
- On Dec 31, 2009, Lisalda testified Kelly moved out of the St. Charles residence, taking his belongings and surrendering his key.
- In late Jan/early Feb 2010, Lisalda received a Facebook message indicating Kelly was living with Steve Rosen in Lake St. Louis.
- Angela Clark testified Kelly did not update his registration from the St. Charles address until Mar 22, 2010, with the change effective Mar 17, 2010.
- The trial court convicted Kelly of failure to register and sentenced him to eight months in jail.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lisalda’s Facebook message testimony was admissible evidence. | Kelly argues the Facebook message is inadmissible hearsay. | State argues the evidence is admissible or cumulative of other proof. | Evidence was admissible or cumulative; no new-trial needed. |
| Whether there was sufficient admissible evidence to convict given Kelly’s claimed transience. | Evidence of leaving residence and late update suffices to show a change of residence. | Transience/no address to update, so no change occurred. | There was sufficient admissible evidence to support conviction. |
| How §589.414.1 should be interpreted regarding updates after leaving a residence. | Statute requires update only when obtaining a new permanent residence. | Update not required during transient period. | Court adopts State’s interpretation: leaving a residence with no intent to return is a change requiring update. |
Key Cases Cited
- U.S. v. Van Buren, 599 F.3d 170 (2d Cir. 2010) (SORNA requires updating upon terminating residence with no intent to return)
- Doe v. Phillips, 194 S.W.3d 883 (Mo. banc 2006) (statutory purpose to protect children from sex offenders)
- State v. Johnson, 354 S.W.3d 627 (Mo. banc 2011) (sufficiency of evidence standard for criminal conviction)
- State v. Tabor, 219 S.W.3d 769 (Mo.App. S.D. 2007) (abuse-of-discretion standard for admission of evidence)