People v. Kelly

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
2023 IL App (3d) 210378-UOrder filed May 22, 2023
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2023
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 14th Judicial Circuit,
) Henry County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-21-0378
v. ) Circuit No. 20-CF-352
)
KYA R.E. KELLY, ) Honorable
) Terence M. Patton,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE HETTEL delivered the judgment of the court.
Justices McDade and Albrecht concurred in the judgment.
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ORDER
¶1 Held: The evidence presented at trial was insufficient to sustain a conviction for failure
to register as a sex offender.
¶2 Defendant, Kya R.E. Kelly, appeals from her conviction for failure to register as a sex
offender. Defendant argues that: (1) the State failed to provide sufficient evidence to prove her
guilty beyond a reasonable doubt, (2) the jury was not instructed on an essential element of the
offense, and (3) she did not validly waive her right to a 12-person jury. We reverse defendant’s
conviction outright.
¶3 I. BACKGROUND
¶4 The State charged defendant with failure to register as a sex offender (730 ILCS 150/3(a)
(West 2020)). The information alleged that on or about May 20, 2020, defendant, “a sex offender
who lacks a fixed residence, knowingly failed to register, in accordance with the provisions of the
Sex Offender Registration Act [(Act)], with the Kewanee Police Department, Henry County,
Illinois, on a weekly basis as required under the *** Act, said defendant having previously violated
the *** Act in Henry County Case Number 19-CF-157.” Counsel was appointed to represent
defendant.
¶5 The case proceeded to a six-person jury trial on May 5, 2021. Prior to the start of trial,
defendant filed motions in limine to exclude evidence of her prior convictions and bad acts.
Regarding defendant’s prior conviction for a sex offense, the parties agreed to stipulate to the
following: “1. Defendant *** is a person who has been charged and convicted under Illinois law
of a sex offense. 2. Defendant *** is a sex offender as defined under the laws of the State of
Illinois.” At the conclusion of the hearing, the court indicated that the trial would begin the next
morning at 9 a.m., and the case recessed for a short time before the beginning of voir dire. Six
jurors and one alternate were chosen. The next morning, defendant failed to appear. The trial
proceeded in absentia.
¶6 Officer Dalton Kuffel of the Kewanee Police Department testified that he was familiar with
defendant and identified a photograph of her. On August 11, 2019, Kuffel met with defendant at
the police department and completed the sex offender registration with her. The registration form
that defendant signed that day was admitted into evidence. Kuffel testified that in the process of
completing the registration, he read the contents of the form to defendant. The form indicated that
defendant was homeless and registered weekly. The second page of the registration form contained
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the language: “I have read and/or had read to me the above requirements. It has been explained to
me and I understand my duty to register next on or before 8-18 of 2019.” Underneath this language,
defendant signed the form. She affixed her signature in the presence of Kuffel. Kuffel explained
that registrants review all the information on the form and any necessary changes are made. Once
the form is complete, it is kept on file at the police department. A copy of the form was given to
defendant before she left that day.
¶7 Officer Eric Hamilton of the Kewanee Police Department testified that he was familiar
with defendant and identified a photograph of her. On May 20, 2020, he located defendant at the
Rux Funeral Home in Kewanee. He indicated that he “made contact with her because [he] knew
that she was in violation of her sex offender registration.” Hamilton explained that he knew
defendant was in violation because she “registers as homeless weekly. She has to register every
week. And she failed to do so.” He also indicated that the police department had received
complaints about her staying at various addresses, several of which officers had attempted to
verify. The State questioned Hamilton regarding his investigation into the date of defendant’s last
registration:
“Q. Once you had made contact with [defendant], did you confirm with
dispatch or at the police department what her last registration date had been?
A. Yes.
Q. Okay.
And did you confirm whether there had been any registrations between that
prior registration date and the 20th of May—
A. Yes.
Q.—2020?
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A. Yes.
Q. Were there any between those?
A. No.”
Hamilton explained that any such registrations would be kept on file at the police department. He
did not disclose the date of defendant’s last registration.
¶8 After Hamilton’s testimony, the State rested. Defense counsel’s motion for directed verdict
was denied. Defendant presented no evidence. The jury returned a verdict of guilty, and a bench
warrant was issued for defendant. Defendant was subsequently arrested on the warrant and
sentenced to four years’ imprisonment following a sentencing hearing. Defendant appeals.
¶9 II. ANALYSIS
¶ 10 Defendant challenges the sufficiency of the evidence presented, the propriety of the jury
instructions given regarding the essential elements of the charge, and the validity of defendant’s
waiver of her right to a 12-person jury. We begin by addressing the sufficiency of the evidence.
¶ 11 We review challenges to the sufficiency of the evidence to determine whether any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People
v. Collins, 106 Ill. 2d 237, 261 (1985). In making this determination, we review the evidence in
the light most favorable to the State. People v. Hardman, 2017 IL 121453, ¶ 37. All reasonable
inferences in favor of the State are allowed but unreasonable or speculative inferences are not
permissible. People v. Cunningham, 212 Ill. 2d 274, 280 (2004). Where an element of the charged
offense requires temporal context, generalized testimony without reference to a specific time or
date is insufficient. People v. Cadena, 2013 IL App (2d) 120285, ¶ 16 (officer’s testimony that a
church “ ‘is an active church’ ” without any other reference to time or date failed to provide
temporal context demonstrating that the building was an active church on the date of the offense
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sufficient to support convictions for unlawful possession of a controlled substance within 1000
feet of a church). “A criminal conviction will not be set aside unless the evidence is so improbable
or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt.” Collins, 106 Ill. 2d at
261. “A conviction will be reversed where the evidence is so unreasonable, improbable, or
unsatisfactory that there remains a reasonable doubt of defendant’s guilt.” People v. Holliday, 2019
IL App (3d) 160315, ¶ 10.
¶ 12 The State charged defendant with violating her duty to register as a sex offender where
defendant, a sex offender who lacked a fixed residence, knowingly failed to register with the
Kewanee Police Department on a weekly basis as required by the Act (730 ILCS 150/1 et seq.
(West 2020)). The provision of the Act which governs the duty to register provides in relevant part
that: “[a]ny person who lacks a fixed residence must report weekly, in person, *** with the chief
of police in the municipality in which he or she is located.” Id. § 3(a).
¶ 13 The parties disagree on what the State must prove to sustain a conviction for the offense of
failure to register as a sex offender as charged. Defendant argues that violations of the Act can be
charged in a variety of ways and the essential elements of those offenses depend on the specific
allegations that have been made. Accordingly, defendant contends that the State must prove that
defendant (1) was a sex offender, (2) lacked a fixed residence, (3) knowingly failed to register
weekly, (4) was required to register with the Kewanee Police Department, and (5) failed to register
on or about May 20, 2020. The State submits that to sustain a conviction, it must only prove that
defendant was subject to registration requirements under the Act and knowingly failed to register.
¶ 14 The evidence presented at trial is insufficient to sustain defendant’s conviction even under
the State’s proposed elements. Here, the State presented sufficient evidence to prove that defendant
was required to register as a sex offender and that she knew she needed to register weekly.
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However, the State presented no direct evidence about defendant’s failure to register between
August 11, 2019, and her May 20, 2020, arrest.
¶ 15 Kuffel testified that on August 11, 2019, defendant registered at the police department
and signed the sex offender registration form. The form indicated that defendant was required to
register weekly. Kuffel did not testify that August 11, 2019, was her last registration date.
Hamilton testified that he knew defendant was in violation because she was required to register
every week and had failed to do so. When asked if he had confirmed with dispatch or the police
department what her last registration date had been, he simply responded, “Yes.” Hamilton failed
to provide the specific date of defendant’s last registration. This exchange contains no temporal
context. See Cadena, 2013 IL App (2d) 120285, ¶ 15. Based on Hamilton’s testimony,
defendant’s last registration date could have occurred any time between her August 11, 2019,
registration with Kuffel and her May 20, 2020, arrest. Accordingly, no inference can be drawn
regarding her failure to register as required. Under this set of facts, the jury could only speculate
that defendant’s last registration date occurred more than one week prior to May 20, 2020.
¶ 16 Moreover, even if Hamilton’s testimony could be taken to mean that defendant failed to
register within a week of May 20, 2020, the evidence offered to establish how Hamilton knew
this information was hearsay. See People v. Gladney, 2020 IL App (3d) 180087, ¶ 21 (officers
may testify to out-of-court statements made to explain their actions but not to establish the truth
of the matter). Hamilton testified that he learned defendant’s last date of registration from
“dispatch or at the police department.” Hamilton failed to offer testimony demonstrating his
investigation and personal knowledge of defendant’s registration date outside of what was told to
him by others. Such personal knowledge is easily established by testimony that he checked
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defendant’s file at the police department or searched for her last registration date in the Law
Enforcement Agencies Data System. See People v. Sweigart, 2021 IL App (2d) 180543, ¶ 49.
¶ 17 Additionally, Hamilton’s testimony that he “made contact with her because [he] knew that
she was in violation of her sex offender registration” is conclusory. When asked how he knew she
was in violation, Hamilton stated that defendant was required to register weekly and failed to do
so. No explanation is given for Hamilton’s familiarity with defendant’s registration status. Without
more explanation, these statements are insufficient to prove defendant’s failure to register as
required. See Cadena, 2013 IL App (2d) 120285, ¶ 17 (a witness’s familiarity with the status of
something requires an explanation of that witness’s familiarity, more than the bare facts that the
witness is a police officer with several years of service). Thus, the evidence presented is
insufficient to prove defendant’s guilt beyond a reasonable doubt. Accordingly, we reverse
defendant’s conviction outright. Since we reversed defendant’s conviction, we need not reach
defendant’s remaining arguments.
¶ 18 III. CONCLUSION
¶ 19 For the foregoing reasons, we reverse defendant’s conviction for failure to register as a sex
offender.
¶ 20 Conviction reversed.
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