People of Michigan v. Kyle Ryan Kurtz ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 18, 2018
Plaintiff-Appellee,
v No. 340289
Macomb Circuit Court
KYLE RYAN KURTZ, LC No. 2016-000821-FH
Defendant-Appellant.
Before: M. J. KELLY, P.J., and METER and O’BRIEN, JJ.
PER CURIAM.
In this case involving the Sex Offender Registration Act (SORA), MCL 28.721 et seq.,
defendant, Kyle Kurtz, appeals as of right his jury trial conviction of failure to comply with
SORA, MCL 28.729(1)(a). Because Kurtz’s conviction was based on sufficient evidence and
was not against the great weight of the evidence, we affirm.
I. BASIC FACTS
In July 2014, Kurtz was convicted of aggravated indecent exposure, MCL
750.335a(2)(b). As a consequence of his conviction, he is required to register as a sex offender.1
Initially, Kurtz registered his residence as being in Sterling Heights, Michigan. However, in
April 2015, he updated his information, verifying that his address was in Eastpointe, Michigan.
In May 2015 and August 2015, the probation officer supervising his compliance with
SORA made two scheduled visits to the Eastpointe address. Kurtz was present both times, as
was his dog. The probation officer conducted a walkthrough inspection of the home on at least
one of those dates. She testified that the house was sparsely furnished, and she noted the
presence of a couch and a TV, but the absence of any personal belongings such as clothes, hats,
shoes, and food on the counters. The probation officer also stated that although Kurtz had a dog,
she did not observe a food bowl, water bowl, or dog toys. Additionally, after noting that the dog
appeared to be a golden retriever or a yellow lab, she testified that she did not see any visible dog
1
See MCL 28.723 and MCL 28.722(j) and (s)(ii).
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hair. The probation officer explained that it was unusual for a house to be so sparse and devoid
of personal items, but at the time she took no further action.
On September 9, 2015, one of Kurtz’s Eastpointe neighbors submitted a tip concerning
him. The neighbor testified that she had believed the house was vacant, but when she checked
the sex offender registry she realized that Kurtz was supposedly living next door. She stated that
she called in the tip because she believed that he was using the address for registration, but was
living somewhere else. At trial, the neighbor explained that she was a stay-at-home mother and
was also a smoker. She stated that from where she smokes on her front porch,2 she can see
Kurtz’s driveway and house. She testified that in the months before she made her tip she never
saw a vehicle in the driveway, did not see any people, and did not see any activity of any kind.
She also recounted an incident where her children threw a ball into Kurtz’s backyard and then
opened the gate to his backyard to retrieve it. She explained that after a week the gate was still
open. The neighbor also testified at length about the accumulation of mail on Kurtz’s porch.
She stated that it was coming out of the mailbox and that “porch” fliers were scattered all over
the place. She never saw anyone come to pick up the mail.
Based on the tip, the probation officer made an unscheduled visit to the Eastpointe
address on September 2, 2015. She stated that no one answered the door and Kurtz and his dog
were not present. Although she looked in the windows, she did not see any personal belongings
or items for the dog. She did, however, observe that the mailbox was full. She then traveled to
the Sterling Heights address that Kurtz had previously registered as his residence. Although
Kurtz was not present, she stated that there was a large dog barking inside. When she looked
through the colored windows she saw a dog that she believed was Kurtz’s.
On September 3, 2015, a different agent went to the Sterling Heights address. He
testified that he also heard a dog barking, but stated that no one answered the door. He
photographed Kurtz’s vehicle in the garage, however. On September 4, 2015, Kurtz’s probation
officer made another visit to the Sterling Heights home. She stated that she made contact with
someone named Joe Fora, but Kurtz and his dog were not present.
The probation officer reported her suspicion that Kurtz was living at one address, but
verifying at another to the Sterling Heights police department. Subsequently, on October 7,
2015, the probation officer and a police officer went to the Sterling Heights address. There was
no vehicle present and no one answered the door. Thereafter, the police officer called Kurtz’s
phone. Kurtz reported to the officer that he was at a seminar for work and would be out of town
until October 12, 2015. Although the officer and Kurtz arranged to meet on October 12, 2015,
Kurtz did not show up to the meeting. In response to the officer’s call about the missed meeting,
Kurtz stated that the seminar was running long and he would be out of town for a few more days.
At trial, the officer stated that he told Kurtz he needed to discuss with Kurtz the details about
where he was residing. Kurtz told the officer that he would contact him once he was back in
2
The neighbor explained that she would usually have her last cigarette of the day around 10 or
11 o’clock at night.
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town, but he did not do so. The officer called Kurtz three more times, leaving a voicemail each
time, but Kurtz did not return the calls.
While the officer was attempting to get in contact with Kurtz, the probation officer made
another unscheduled visit to Kurtz’s Eastpointe address on October 9, 2017. She stated that the
situation was much the same as the previous unscheduled visit: no car, no dog, no answer at the
door, and a full mailbox.
Kurtz’s Eastpointe neighbor testified that a month or so after she called in the tip, she
observed vehicles in Kurtz’s driveway. She testified that it “looked like somebody was kind of
moving in type of thing.” She explained that she saw a couple of people, a couple of vehicles,
and a cable-company vehicle. The neighbor also testified that she started hearing a big dog
barking all the time. She added that she also saw Kurtz for the first time after she called in her
tip.
In December 2015, Kurtz was arrested at the Eastpointe address for failing to comply
with SORA. Following a jury trial, he was convicted of knowingly providing false information
about where he was residing. This appeal follows.
II. DIRECTED VERDICT
A. STANDARD OF REVIEW
Kurtz argues that the trial court erred by denying his motion for a directed verdict
because there was insufficient evidence to submit the charge to the jury. When reviewing a trial
court’s decision on a motion for a directed verdict, this Court reviews the record de novo to
determine whether the evidence presented by the prosecutor, viewed in the light most favorable
to the prosecutor, could persuade a rational trier of fact that the essential elements of the crime
charged were proved beyond a reasonable doubt. People v Mayhew, 236 Mich App 112, 124-
125; 600 NW2d 370 (1999).
B. ANALYSIS
MCL 28.727(6) provides that “[a]n individual shall not knowingly provide false or
misleading information concerning a registration, notice, or verification.” Under this provision,
individuals registered as sex offenders must provide truthful and accurate information to the
authorities regarding where they live. People v Dowdy, 489 Mich 373, 379-380; 802 NW2d 239
(2011). Thus, in order to sustain a conviction, the prosecution must establish beyond a
reasonable doubt (1) the defendant was required to register as a sex offender, (2) the defendant
provided misleading information concerning the registration, notice, or verification of his
address, and (3) the defendant provided the false information willingly. Kurtz challenges the
second and third elements.
Viewed in the light most favorable to the prosecution, there was sufficient evidence to
support the elements. First, there was testimony that before the neighbor called in the tip, he was
only seen at the house during scheduled visits from his probation officer. During those visits, the
probation officer noted that the house was sparsely furnished and that there were no personal
belongings present. She also noted the absence of food and water bowls for the dog, dog toys, or
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dog hair. Second, the neighbor testified that in the months leading up to her tip, she believed the
house to be vacant based on the absence of people, vehicles, and activities at the house. She
recounted one incident where the gate to the yard was open for over a week after her children
opened it. She noted that the mail was also overflowing and flyers were scattered on the porch.
Third, the neighbor testified that a month or so after she reported the tip, she observed what she
believed to be someone moving into the residence. The timing of this is significant as the police
officer testified that he had notified Kurtz that he had questions about where Kurtz was residing.
In any event, the neighbor testified that she now heard a bigger dog barking all the time and that
she saw Kurtz for the first time. Overall, based on this evidence, the jury could infer that Kurtz
verified the Eastpointe address as his home, but that he did not actually reside in the house until
after he knew that he was being investigated regarding where he lived. And, as there is evidence
that he was aware that he had to truthfully report where he lived, it is also reasonable to infer that
when he registered the Eastpointe address as his residence in April 2015, he did so with the
knowledge that he was not, in fact, actually going to reside there. Thus, viewing the evidence in
the light most favorable to the jury, there was sufficient evidence to submit the charge to the jury
and the trial court did not err by denying Kurtz’s motion for a directed verdict.
III. GREAT WEIGHT OF THE EVIDENCE
A. STANDARD OF REVIEW
Kurtz next argues that his conviction was against the great weight of the evidence.
Because he did not move for a new trial on this basis in the lower court, his claim is unpreserved
and we review it for plain error. See People v Musser, 259 Mich App 215, 218; 673 NW2d 800
(2003).
B. ANALYSIS
“The test to determine whether a verdict is against the great weight of the evidence is
whether the evidence preponderates so heavily against the verdict that it would be a miscarriage
of justice to allow the verdict to stand.” Id. at 218-219. “It is the province of the jury to
determine questions of fact and assess the credibility of witnesses.” People v Lemmon, 456 Mich
625, 637; 576 NW2d 129 (1998). “Conflicting testimony, even when impeached to some extent,
is an insufficient ground for granting a new trial.” Musser, 259 Mich App at 219. Moreover,
“unless it can be said that directly contradictory testimony was so far impeached that it was
deprived of all probative value or that the jury could not believe it, or contradicted indisputable
physical facts or defied physical realities, the trial court must defer to the jury’s determination.
Id.
Kurtz argues that he presented ample evidence that he actually resided in the Eastpointe
residence during the pertinent timeframe, but his recitation of the evidence is merely a recitation
of the evidence favorable to him. The jury was under no obligation to accept the testimony of
the defense witnesses while rejecting that of the prosecution’s witnesses. As explained in
Section II(B) of this opinion, the prosecution presented sufficient evidence to show that the
Eastpointe residence was not inhabited by Kurtz during the period in which Kurtz claimed that
he resided there. The testimony of the prosecution’s and defense’s witnesses necessarily
conflicts on the issue of whether defendant resided at the Eastpointe residence, and the testimony
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of the prosecution’s witnesses was not “so far impeached that it was deprived of all probative
value or that the jury could not believe it.” See id. Kurtz’s conviction for failure to comply with
SORA, therefore, was not against the great weight of the evidence.
Affirmed.
/s/ Michael J. Kelly
/s/ Patrick M. Meter
/s/ Colleen A. O'Brien
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