State v. Epp

NOT DESIGNATED FOR PUBLICATION

No. 121,872

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

BRIAN L. EPP,
Appellant.

MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed November 25, 2020.
Affirmed.

Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.

Andrew R. Davidson, assistant district attorney, Keith Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before POWELL, P.J., GREEN and STANDRIDGE, JJ.

PER CURIAM: Following his convictions for criminal threat and defacing
identification marks on a firearm, Brian L. Epp appeals from the district court's order
requiring that he register as a violent offender under the Kansas Offender Registration
Act (KORA), K.S.A. 2019 Supp. 22-4901 et seq. Epp raises two constitutional arguments
for the first time on appeal. First, Epp contends that KORA violates offenders'
constitutional right to due process by failing to provide a process to contest the district
court's factual findings. Second, Epp alleges the district court erred by increasing his
punishment based on improper judicial fact-finding in violation of his constitutional

1
rights as recognized in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.
Ed. 2d 435 (2000). For the reasons stated below, we affirm the district court's order
requiring Epp to register as a violent offender under KORA.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2018, Epp was involved in a confrontation with a neighbor after his
dog ran onto the neighbor's property. During the confrontation, Epp pointed a gun at the
neighbor and shot in her direction.

The State charged Epp with aggravated assault, criminal threat, criminal carrying
of a weapon, defacing identification marks on a firearm, criminal use of a weapon, and
possession of drug paraphernalia. Pursuant to a plea agreement, Epp pled guilty to
criminal threat and defacing identification marks on a firearm. In exchange, the State
dismissed the remaining charges. When giving a factual basis for the pleas, the State
explained that Epp had pointed a handgun in his neighbor's direction, shot one round, and
told her that he had "more rounds than her, so let's go." The State also noted that law
enforcement had discovered a single shotgun with all identifying marks removed inside
Epp's garage.

Before sentencing, a presentence investigation (PSI) report indicated that a special
sentencing rule applied because Epp's criminal threat conviction was a "[p]erson felony
committed with a firearm." When a firearm is used to commit a person felony, the
sentence is presumptive imprisonment. K.S.A. 2019 Supp. 21-6804(h). The PSI report
also reflected that Epp's criminal threat conviction required offender registration with a
court finding on the record that a deadly weapon was used in the commission of his
crime. See K.S.A. 2019 Supp. 22-4902(e)(2).

2
 Epp filed a motion for departure from his presumed sentence. The parties appeared
at a sentencing hearing where the district court found on the record, over defense
counsel's objection, that Epp had committed the crime of criminal threat while using a
firearm. As a result, the court ordered Epp to register as a violent offender. The court
later denied Epp's motion for departure and imposed a controlling 12-month prison
sentence with a postrelease supervision term of 12 months. The journal entry required
Epp to register as a violent offender for 15 years after his release from prison given the
court's finding that he committed a person felony with a deadly weapon.

LEGAL ANALYSIS

KORA requires violent offenders to register for 15 years following their discharge
or release from custody. See K.S.A. 2019 Supp. 22-4906(a)(1)(N). K.S.A. 2019 Supp.
22-4902(e)(2) defines "violent offenders" as any person who "is convicted of any person
felony and the court makes a finding on the record that a deadly weapon was used in the
commission of such person felony."

Epp challenges his requirement to register as a violent offender, arguing first that
KORA violates offenders' constitutional right to due process by failing to provide a
process by which to contest the district court's factual findings creating a duty to register
and failing to establish the State's burden of proof. Epp also contends that by ordering
him to register as a violent offender, the district court erroneously increased his
punishment based on improper judicial fact-finding in violation of his constitutional
rights as recognized in Apprendi. We address each argument in turn.

Due process under KORA

Epp argues that KORA is unconstitutional because it violates offenders' due
process rights. Epp concedes he did not challenge the constitutionality of KORA before

3
the district court. Generally, constitutional grounds for reversal asserted for the first time
on appeal are not properly before the appellate court for review. State v. Daniel, 307 Kan.
428, 430, 410 P.3d 877 (2018). But Epp correctly argues that we may address the issue
for the first time on appeal because such consideration is necessary to serve the ends of
justice and prevent the denial of fundamental rights. See State v. Phillips, 299 Kan. 479,
493, 325 P.3d 1095 (2014) (setting forth exceptions to general rule that new legal theory
may not be asserted for first time on appeal).

Determining a statute's constitutionality is a question of law subject to unlimited
review. Appellate courts presume statutes are constitutional and must resolve all doubts
in favor of a statute's validity. We are bound to interpret a statute in a way that makes it
constitutional if there is any reasonable construction that would maintain the Legislature's
apparent intent. State v. Gonzalez, 307 Kan. 575, 579, 412 P.3d 968 (2018).

Under the Fourteenth Amendment to the United States Constitution, no State may
"deprive any person of life, liberty, or property without due process of law." Registration
requirements affect an offender's liberty as well as his or her finances. See, e.g., K.S.A.
2019 Supp. 22-4905 (listing ongoing fees and duties required of registered offenders).
The basic elements of procedural due process are notice and "the opportunity to be heard
at a meaningful time and in a meaningful manner." In re Care & Treatment of Ellison,
305 Kan. 519, 526, 385 P.3d 15 (2016).

Epp argues that KORA violates offenders' due process rights in two ways. First, he
contends that the Act does not give offenders an opportunity to contest the district court's
exercise of a discretionary deadly weapon finding. Second, Epp alleges that the Act fails
to specify the burden of proof required to find that an offender used a deadly weapon
when committing a person felony.

4
 Opportunity to contest discretionary finding

Epp asserts that KORA violates his right to due process by providing no
opportunity to contest the district court's exercise of its discretion to find that he used a
deadly weapon in committing the crime of criminal threat, a person felony. "Procedural
due process imposes constraints on governmental decisions which deprive individuals of
'liberty' or 'property' interests within the meaning of the Due Process Clause of the Fifth
or Fourteenth Amendment." Mathews v. Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893, 47 L.
Ed. 2d 18 (1976). "The fundamental requirement of due process is the opportunity to be
heard 'at a meaningful time and in a meaningful manner.'" 424 U.S. at 333 (quoting
Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 14 L. Ed. 2d 62 [1965]).

Violent offenders are required to register under K.S.A. 2019 Supp. 22-4902(a). A
violent offender is statutorily defined as any person "convicted of any person felony and
the court makes a finding on the record that a deadly weapon was used in the commission
of such person felony." K.S.A. 2019 Supp. 22-4902(e)(2). Here, Epp was convicted of
criminal threat, a person felony. So Epp's crime of conviction did not automatically
qualify him as a violent offender. But in order to be deemed a violent offender under the
facts here, KORA required the court to make a finding on the record that a deadly
weapon was used when Epp committed the crime of criminal threat. So KORA provided
notice to Epp that the district court might exercise its discretion to make the requisite
fact-finding and require registration. And Epp does not dispute that he was provided
adequate notice. Instead, he alleges that he was denied a meaningful opportunity to be
heard before the sentencing court exercised its discretion to consider and then find that he
used a deadly weapon in committing the crime of criminal threat. For the reasons stated
below, we are not persuaded by Epp's argument.

5
 We begin with the plea hearing. After Epp pled guilty to the crime of criminal
threat, the district court asked the State to provide a factual basis. The State then provided
the following facts:

"[The victim Vanessa Wenzel] stated her neighbor, Brian Epp, who lived at [address
omitted] had pointed a handgun in her direction and shot one round. [Wenzel] said the
defendant, Mr. Epp, also told her he had more rounds than her, so let's go. Wenzel said
when Epp said this, she was afraid that he would hurt her since he already shot at her
once and she was scared."

So as early as the plea hearing, Epp had notice and an opportunity to be heard on whether
a gun was used in the commission of the crime to which he was pleading guilty.
Although he had an opportunity to do so, Epp did not object to the State's factual basis. In
the absence of any objection, the district court found a factual basis for the charges based
on the State's undisputed proffer and found the Epp guilty.

We now move to the PSI report, which indicated that a special sentencing rule
requiring presumptive prison in what would otherwise be a border box case applied under
the facts presented because Epp's criminal threat conviction was a "[p]erson felony
committed with a firearm." See K.S.A. 2019 Supp. 21-6804(h) (When a firearm is used to
commit a person felony, the sentence is presumptive imprisonment.). The PSI report also
reflected that Epp's criminal threat conviction required offender registration with a court
finding on the record that a deadly weapon was used in the commission of his crime. See
K.S.A. 2019 Supp. 22-4902(e)(2). There is no indication in the record that Epp objected
to (1) identification of his crime in the PSI report as one requiring presumptive prison
because a deadly weapon was used in committing the underlying crime or (2)
identification in the PSI report that Epp's criminal threat conviction required offender
registration with a court finding on the record that a deadly weapon was used in the
commission of his crime. In fact, there is no indication in the record that Epp objected to
any information in the PSI report.

6
 Two days after the PSI report was filed with the court, Epp filed a motion for
dispositional departure. Significantly, Epp expressly acknowledged in this motion that his
sentence was presumptive prison in this case because he used a deadly weapon in
committing a person felony:

"4. The Defendant pled guilty for the primary offense of Criminal Threat, a severity
level 9 person felony. Pursuant to the Kansas Sentencing Guidelines, the defendant
has a criminal history score of [D] which normally would place him in a border box.
"5. Due to Special Rules No. 1, the Defendant is in the presumptive prison box.
"6. Although a firearm was used during the incident, the crime for which he was
convicted, criminal threat, was the result of a verbal threat made by the Defendant.
The other charges involving the firearm were dismissed."

At sentencing, and based on the information in the PSI report showing offender
registration would be required with a court finding, the district court asked if the State
was requesting that it make a factual finding that a deadly weapon was used in the
commission of the crime. The State responded:

"Yes, Your Honor. The State's alleging that on that date he brandished a handgun
in her direction and shot one round and told her he had more rounds and let's go. And so
we believe that that was what the legislature had encapsulated when they decided any
crimes using a firearm should be a registered offense."

The court then turned to defense counsel in order to provide her an opportunity to
respond to the State's request:

"THE COURT: Ms. Crane.
"MS. CRANE: Thank you, Your Honor. I did file a motion for dispositional
departure in this matter. The fact of the matter was [Wenzel] was shooting at his dogs, so
he came out to see what was going on and he shot up in the air. And so there was more to
it than just he brandished a gun at her for no particular reason. . . . [T]here is a firearm

7
 that was kind of a costume firearm that he has defaced. It was not the gun that was used
in the incident. . . .
"THE COURT: Ms. Crane, do you agree I can make the finding that this was an
offense committed with a firearm, thereby justifying registration as a person felony I
should say?
"MS. CRANE: The [aggravated assault] is not what he was actually convicted
of. They charged him with agg[ravated] assault. He was not convicted of that. He was
convicted of criminal threat, the [']come on, let's go. I've got more if you want. Let's go.[']
I don't think it is something that needs to be registered for life or 10 years.
"THE COURT: I think we need to set that issue for hearing unless the State
withdraws its request for registration."

At this point, the State argued the district court could make a finding that this was
an offense committed with a firearm, justifying registration as a person felony, based on
the evidence presented at the preliminary hearing. The State then sought to clarify some
of the facts presented by defense counsel; specifically, that Wenzel initially went outside
to protect her own animals when Epp's dog approached her, showed its teeth, and lunged
at her from 4 or 5 feet away so she pointed her gun towards the property line and fired it
towards a tree row to scare the dog away. The State indicated it was at that point that Epp
came out, fired his gun, and threatened Wenzel by saying that he had more ammunition
than her. After the State provided this information, Wenzel provided a statement to the
court about the negative impact this incident has had on her. When Wenzel was done, the
following colloquy took place:

"THE COURT: I'm going back to the question about registration. Mr. Davidson
[prosecutor], do you believe I can make that finding based on the record, or would you
like me to set that for hearing?
"MR. DAVIDSON: I believe you can make that finding based on the record
that's been presented. I would ask that the Court review the transcript of the plea hearing
and the transcript of the preliminary hearing. I have the prelim[inary] transcript here and
we can set it for your determination maybe next week or the week after. May I approach?
"THE COURT: Yes. Whose testimony am I looking for?

8
 "MR. DAVIDSON: There is testimony from Ms. Wenzel in there and another
officer, Officer Clifford but the focus on the crime was based off from Ms. Wenzel's
testimony.
"THE COURT: Alright. I am going to find this was an offense a person felony
committed with a firearm and requires registration. So, Mr. Epp, you will need to
complete the notice of registration. And you have the right to speak, Mr. Epp."

Epp then personally addressed the court. Epp did not speak to or challenge the court's
finding that he committed the underlying person felony with a firearm that required
registration. Instead, Epp presented argument in support of his motion for dispositional
departure from presumptive prison by emphasizing that he was in drug treatment and
trying to make changes to his life to get his children back into his home. Based on his
statement to the court, we find the underlying premise of Epp's argument was that
although he was facing presumptive prison under K.S.A. 2019 Supp. 21-6804(h) because
a firearm was used to commit a person felony, a dispositional departure was justified
because he was working on living a drug-free life. So Epp did not just fail to challenge
the court's finding that he committed criminal threat with a firearm, he expressly
acknowledged that he did.

Finally, the journal entry of judgment reflects that a special sentencing rule
requiring presumptive prison (in what would otherwise be a border box case) applied
under the facts presented because Epp's criminal threat conviction was a "[p]erson felony
committed with a firearm." See K.S.A. 2019 Supp. 21-6804(h) (When a firearm is used to
commit a person felony, the sentence is presumptive imprisonment.). Applying this
special rule, the district court imposed a 12-month prison sentence. Significantly, Epp did
not appeal from his presumptive prison sentence, which was based on a finding under
K.S.A. 2019 Supp. 21-6804(h) that he committed his crime with a firearm. Instead, he
challenges his opportunity to be heard on the issue in the context of the court's finding
that he had to register as a violent offender. Epp's decision to plead to a crime in which he
acknowledged a special rule applied based on his use of a firearm is incompatible with

9
his argument that he was deprived of an opportunity to be heard on whether he used a
firearm in committing the crime to which he pled.

In sum, we find Epp had many meaningful opportunities to be heard on the issue
of whether he used a deadly weapon in committing the crime of criminal threat. During
the plea, he did not object when the State read its proffer of evidence that a firearm was
used in the commission of the crime. Epp did not object to the PSI report, which stated
this was a presumptive prison case under K.S.A. 2019 Supp. 21-6804(h), because a
firearm was used in the commission of the crime. Epp filed a motion and argued in favor
of a departure on a case that would have been presumptive probation absent the firearm.
At the sentencing hearing, the district court specifically provided both Epp's attorney and
Epp himself the opportunity to speak to the firearm finding for purposes of registration.
Defense counsel responded to this inquiry by stating she did not think Epp should be
required to register "for life or 10 years" as the result of a criminal threat conviction. But
conspicuously missing from counsel's response was any challenge or objection to the
State's request for a finding that Epp used a deadly weapon in committing the crime of
criminal threat. Instead, they both used the time to argue in favor of a dispositional
departure from presumptive prison based on progress Epp had made in drug treatment
and in trying to get his children back into his home.

Epp was given notice and an opportunity to be heard. His failure to take advantage
of the opportunity to be heard does not constitute a denial of due process.

Burden of proof

Next, Epp argues that KORA is unconstitutional because K.S.A. 2019 Supp. 22-
4902(e)(2) contains no explicit standard of proof. In light of this deficiency, Epp suggests
that due process requires a district court to find beyond a reasonable doubt that a

10
defendant used a deadly weapon when determining whether that defendant is a violent
offender under the statute.

Epp acknowledges that a panel of this court has determined that the proper burden
of proof for discretionary registration findings is preponderance of the evidence. See
State v. Ford, No. 119,328, 2019 WL 3242420, at *4-6 (Kan. App. 2019) (unpublished
opinion), rev. denied 311 Kan. 1048 (2020). But Epp argues that Ford was wrongly
decided.

In Ford, the panel concluded that the Legislature intended for district courts to use
a preponderance of the evidence standard when determining whether a defendant used a
deadly weapon under K.S.A. 2018 Supp. 22-4902(e)(2). In reaching this conclusion, the
panel reasoned:

"The failure of K.S.A. 2018 Supp. 22-4902(e)(2) to mention a burden of proof
suggests a preponderance of evidence standard. This conclusion is further supported by
the Legislature's inclusion of a beyond a reasonable doubt standard in subsection (c)(18)
of K.S.A. 2018 Supp. 22-4902, which provides that a sex offender includes a person
convicted of a crime involving 'any act which has been determined beyond a reasonable
doubt to have been sexually motivated.' If we were to presume that proof beyond a
reasonable doubt is required on all the district court's findings under K.S.A. 2018 Supp.
22-4902, then the language in K.S.A. 2018 Supp. 22-4902(c)(18) specifying the beyond a
reasonable doubt standard would become superfluous. See Patterson v. Cowley County,
Kansas, 307 Kan. 616, 626, 413 P.3d 432 (2018) ("We generally presume 'the legislature
does not intend to enact useless or meaningless legislation.'"). As a result, we conclude
that the Legislature intended for the district court to use a preponderance of the evidence
standard when determining whether a defendant used a deadly weapon under K.S.A.
2018 Supp. 22-4902(e)(2)." Ford, 2019 WL 3242420, at *5.

The Ford panel explained that a preponderance of the evidence standard does not
violate due process in this context because "the function of a standard of proof is to

11
instruct the fact-finder to the level of confidence that society expects for a particular
decision" and that "[t]he different standards of proof reflect the differences in how society
believes the risk of error should be distributed between the parties." 2019 WL 3242420,
at *5. The panel noted that the most stringent burden of proof, beyond a reasonable
doubt, applies to criminal trials due to the gravity of the private interests affected and that
due process requires the State to prove the guilt of an accused beyond a reasonable doubt
on each element of the crime charged. 2019 WL 3242420, at *5.

The Ford panel also pointed out that a preponderance of the evidence standard
applies to all civil actions unless a fundamental individual interest or right is at stake,
such as a case involving the termination of parental rights or the civil commitment of a
mentally ill patient. 2019 WL 3242420, at *5; see K.S.A. 2019 Supp. 38-2269(a) (clear
and convincing standard of proof applies to all termination of parental rights cases);
K.S.A. 2019 Supp. 59-2966 (clear and convincing standard of proof required for civil
commitment of mentally ill). The panel indicated that there is a higher risk of erroneous
fact-finding in termination of parental rights cases because the proceedings "'employ
imprecise substantive standards that leave determinations unusually open to the
subjective findings of the judge'" and are often vulnerable to cultural or class bias to the
detriment of poor or uneducated parents who lack the resources to mount a defense to the
State's case. 2019 WL 3242420, at *6. The panel held that using a preponderance of the
evidence standard in a deadly weapon finding does not create a similar undue risk of an
erroneous deprivation of private interests. The panel reasoned that whether a defendant
used a deadly weapon is an objective standard that is not so susceptible to subjective
values or biases of a judge and that concerns about disparities in litigation resources are
not as common in a deadly weapon finding as they are in a finding of parental unfitness.
2019 WL 3242420, at *6.

Given the relatively low risk of depriving defendants affected by KORA
registration of their private interests by using a preponderance of the evidence standard,

12
as well as the fact that offender registration requirements do not implicate interests as
fundamental or important as those which trigger a heightened standard of proof, the Ford
panel held that a deadly weapon finding for purposes of KORA registration does not
trigger that heightened standard. The panel further held that any privacy interest was
outweighed by the government's considerable interest in protecting the public. 2019 WL
3242420, at *6.

Epp asserts that Ford was wrongly decided because it discounted the impact
KORA imposes on registrants' fundamental liberty interests, because its finding that
KORA serves a compelling public interest by protecting the public is unfounded, and
because the rule of lenity requires a different result.

Contrary to Epp's arguments, the Ford panel's reasoning is sound. As discussed by
the panel, KORA registration affects offenders' private interests by imposing reporting
requirements and requiring them to pay registration fees. But these requirements do not
implicate privacy rights or other interests as fundamental or significant as those which
trigger a heightened standard of proof. Ford, 2019 WL 3242420, at *6; see State v.
Adams, No. 114,276, 2016 WL 4499520, at *3 (Kan. App. 2016) (unpublished opinion)
(placement on sexual offender registry does not burden offender's fundamental right to
privacy); see also In re W.M., 851 A.2d 431, 455 (D.C. 2004) (District of Columbia Sex
Offender Registration Act does not infringe on fundamental liberty interests); J.J.F. v.
State, 132 P.3d 170, 179 (Wyo. 2006) (private interest of sexual offender registrant "not
so high as the fundamental interest involved in the parent-child relationship, or the
fundamental interest in not being civilly committed, or the fundamental interest in not
being deported"). We agree that the impact KORA imposes on offenders' private interests
does not rise to the level of the fundamental interests involved in the parent-child
relationship or the liberty interests at issue in civil commitment and criminal cases and
thus does not warrant application of a stricter standard of proof.

13
 KORA was enacted "in order to protect public safety and provide the public with
notice of violent offenders present in the community." State v. Franklin, 44 Kan. App. 2d
156, 160, 234 P.3d 860 (2010), abrogated on other grounds by State v. Carter, 311 Kan.
206, 459 P.3d 186 (2020). Epp alleges that there is no evidence in the legislative record
to support a finding that offenders who commit a felony with a deadly weapon are likely
to reoffend and therefore must be registered or that adding this category of offenders to
the registry would enhance public safety. But Epp's argument misses the point. As
discussed, "the function of a standard of proof is to instruct the fact-finder to the level of
confidence that society expects for a particular decision" and "[t]he different standards of
proof reflect the differences in how society believes the risk of error should be distributed
between the parties." Ford, 2019 WL 3242420, at *5.

Finally, Epp relies on the rule of lenity that applies to conflicting statutes to
support his claim of error. See State v. Horn, 288 Kan. 690, 693, 206 P.3d 526 (2009)
("Where the legislature fails to manifest a clear legislative intent by permitting the
existence of conflicting statutory provisions, the rule of lenity must be considered."). The
rule of lenity requires this court to adopt the interpretation of a criminal statute most
favorable to the defendant when presented with two reasonable and sensible
interpretations of that statute. State v. Collins, 303 Kan. 472, 476, 362 P.3d 1098 (2015).
But the rule of lenity arises only when there is any reasonable doubt about the statute's
meaning. See State v. Williams, 303 Kan. 750, 760, 368 P.3d 1065 (2016). Here, Epp
provides no substantive argument to support a finding that there is any reasonable doubt
about the meaning of K.S.A. 2019 Supp. 22-4902(e)(2). His argument on this point
necessarily fails.

In sum, KORA does not violate offenders' due process rights by failing to outline a
process by which to contest a deadly weapon finding under K.S.A. 2019 Supp. 22-
4902(e)(2) or by failing to provide a burden of proof.

14
Epp's constitutional rights under Apprendi

Epp contends that the district court violated his constitutional rights under
Apprendi when the judge—rather than a jury—determined that he used a deadly weapon
while committing the crime of criminal threat, a determination which triggered the
requirement that he register as a violent offender under KORA.

Epp did not raise an Apprendi argument before the district court. But Epp correctly
asserts that we may consider the application of Apprendi for the first time on appeal to
prevent the denial of a fundamental right. State v. Anthony, 273 Kan. 726, 727, 45 P.3d
852 (2002); see State v. Weis, 47 Kan. App. 2d 703, 717, 280 P.3d 805 (2012)
(considering Apprendi issue for first time on appeal to prevent denial of fundamental
rights). Whether a defendant's constitutional rights as described under Apprendi were
violated by a district court raises a question of law over which appellate courts have
unlimited review. State v. Huey, 306 Kan. 1005, 1009, 399 P.3d 211 (2017).

Under Apprendi, only facts that increase the penalty, or punishment, for a crime
need to be submitted to a jury. 530 U.S. at 490. But the Kansas Supreme Court repeatedly
has rejected the argument that offender registration under KORA is punishment. See,
e.g., Carter, 311 Kan. at 217; State v. Perez-Medina, 310 Kan. 525, 539-40, 448 P.3d 446
(2019); Huey, 306 Kan. at 1009-10.

In Huey, the Kansas Supreme Court found that because the Kansas Legislature
intended KORA to be a civil regulatory scheme—not punishment—a defendant must
present "the clearest proof" that registration is punitive before the court would consider
registration a criminal penalty. 306 Kan. at 1010. To that end, the court must consider
several factors to determine whether KORA's effects render it punitive as applied to
violent offenders. These questions are fact intensive and require a clear record. But Huey
raised his Apprendi argument for the first time on appeal and thus failed to present facts

15
in district court which showed that the registration's effects on him were punitive.
Without a record, the Supreme Court held it could not conclude the effects of KORA
were so punitive as to override the Legislature's intent that KORA be a civil remedy. 306
Kan. at 1010.

This court is duty bound to follow Kansas Supreme Court precedent, unless there
is some indication the court is departing from its previous position. State v. Rodriguez,
305 Kan. 1139, 1144, 390 P.3d 903 (2017). Like Huey, Epp did not raise his Apprendi
claim before the district court and has provided no fact-based record for this court to
evaluate KORA's alleged punitive effects on him. Thus, Epp has not shown that his
registration requirements as a violent offender are punishment. Because the registration
order did not increase Epp's punishment, it was unnecessary that a jury find beyond a
reasonable doubt that he used a deadly weapon while committing the offense of criminal
threat. Epp's duty to register as a violent offender under KORA did not violate Apprendi.

Affirmed.

16