The opinion
Cite as 2020 Ark. App. 273
Reason: I attest to the accuracy
and integrity of this document ARKANSAS COURT OF APPEALS
Date: 2021-06-17 10:12:19
Foxit PhantomPDF Version: DIVISION III
9.7.5 No. CR-19-606
Opinion Delivered: April 29, 2020
ANTONIO JAMAR GUYTON APPEAL FROM THE BENTON
APPELLANT COUNTY CIRCUIT COURT
[NO. 04CR-18-146]
V.
STATE OF ARKANSAS HONORABLE ROBIN F. GREEN,
APPELLEE JUDGE
AFFIRMED
PHILLIP T. WHITEAKER, Judge
Antonio Jamar Guyton was convicted by a Benton County jury of failing to comply
with the sex-offender reporting requirements. He was sentenced as a habitual offender to
ninety months’ imprisonment in the Arkansas Department of Correction. On appeal, he
argues that the trial court erred in denying his motions for a directed verdict, in denying his
proffered jury instructions, and in allowing his previous registration forms to be admitted
into evidence.1 We affirm.
I. Facts and Procedural History
In January 2002, Guyton was convicted of fourth-degree sexual assault. At the time
of his conviction, he was not required by law to register as a sex offender. In 2003, however,
1
This appeal returns to our court following our order for rebriefing. See Guyton v.
State, 2020 Ark. App. 82. The deficiency that necessitated rebriefing has been cured.
the Sex Offender Registration Act was amended to include fourth-degree sexual assault as
one of the crimes for which registration is required. Acts of 2003, No. 1390 § 4 (effective
July 16, 2003).
In January 2008, while under supervision for other crimes, Guyton was advised by
his probation officer of his need to register as a sex offender. He completed his first sex-
offender registration form at that time. In June 2015, Guyton pled guilty to the charge of
failing to comply with sex-offender registration after he failed to provide law enforcement
with his valid address. He was sentenced to certain conditions, including a provision that
required him to continue registering as a sex offender. Guyton complied. When he
subsequently registered as a sex offender in January 2017, the sex-offender registration form
he signed listed the Pea Ridge, Arkansas,2 address where he was living with his ex-wife
Shirley Guyton as the registered address and the Pea Ridge Police Department as the
registering agency.
In May 2017, Guyton was involved in an altercation with Shirley at his registered
address. To avoid contact with the police, Guyton gathered all his clothes and left before
they arrived. He initially went to his sister’s address in Fayetteville, Arkansas, but within
twenty-four hours of the incident with Shirley, he removed his ankle monitor, left Arkansas,
and moved to Michigan. Guyton did not inform the Pea Ridge Police Department of his
intended move, nor did he inform them after the move was completed. Based on the above
events, the Benton County prosecutor filed an information in February 2018 charging
2
Pea Ridge is located in Benton County, Arkansas.
2
Guyton as a habitual offender with once again failing to comply with the sex-offender
reporting requirements.
Guyton filed a motion to dismiss the charges, raising several reasons for dismissal: (1)
that when he was originally sentenced in 2002, he had not been ordered by the court to
register as a sex offender; (2) that in 2008 when probation and parole determined he was
required to register, probation and parole had no legal authority to require him to do so;
and (3) that at the time the registration determination was made, he had already completed
his sentence. In response, the State argued that Guyton was required under Arkansas law to
register as a sex offender because (1) the 2003 amendments to the Sex Offender Registration
Act rendered his offense registerable and applied retroactively; (2) Guyton was required to
register pursuant to his 2015 plea agreement in which he also admitted his prior obligation
to register under the Act; and (3) at the time the new registration requirements were
effective, Guyton had not completed his sentence but was still under a suspended imposition
of sentence (SIS) and thus was under community supervision.3 Guyton replied, arguing that
SIS is implemented without supervision and thus is not community supervision as
contemplated by the registration statute’s retroactivity guidelines. The circuit court denied
Guyton’s motion to dismiss, finding that the statute applied retroactively, and that Guyton’s
suspended sentence constituted community supervision.
The State then filed a motion in limine to prevent Guyton from arguing that he was
not required to register, as that issue presented a matter of law for the court to decide and
3
In January 2002, Guyton was sentenced to one year in jail with eight months
suspended for his sexual-assault conviction.
3
would result in a request for improper “jury nullification.” Guyton responded that the
information was admissible, because the State had the burden of proving that he was
required to register as an element of the offense. The court granted the State’s motion in
limine prohibiting Guyton from arguing that the jury could decide whether he was legally
required to comply with the sex-offender registration statutes.
Thereafter, Guyton filed his own motions in limine in an attempt to prevent the state
from introducing his 2015 conviction for failure to register under Arkansas Rules of
Evidence 401 and 403. Citing Reed v. State, 2012 Ark. App. 225, he claimed that the
conviction was not relevant under Rule 401 and that its probative value was outweighed
by its prejudicial effect. He also sought to prevent the State from introducing evidence of
his status as a parolee. The State argued that such evidence was admissible because Guyton
had not stipulated to his status as a registered sex offender, and such evidence was admissible
to prove an element of the offense charged. The State further argued that his status as a
parolee was admissible because his removal of his ankle monitor at his last known location
prior to fleeing the state was relevant to prove he was not complying with his reporting
requirements and was part of the res gestae of the offense.
The trial court held that the 2015 conviction was admissible. In doing so, the court
noted its previous ruling that Guyton had been adjudicated of a sex offense requiring
registration, and under Rule 404(b), the 2015 conviction was admissible as proof of
Guyton’s knowledge that he was required to register. The court also found that it was a
prior conviction which ordered him to register and was thus admissible on that ground as
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well. The court then took under advisement Guyton’s request that the jury not be informed
of his status as a probationer/parolee.
The case proceeded to trial, and Guyton was convicted as a habitual offender with
failing to comply with the registration requirements. Guyton has timely appealed, arguing
that the trial court erred in denying his motions for a directed verdict, in denying his
proffered jury instructions, and in allowing his previous registration forms to be admitted
into evidence.
II. Analysis
A. Directed Verdict
At trial, Guyton made a motion for a directed verdict on two grounds. First, he
argued that the State failed to prove that the Benton County Circuit Court had jurisdiction.
Second, he argued that the State failed to prove that he was required to register as a sex
offender.
A motion for a directed verdict is a challenge to the sufficiency of the evidence.
Bowman v. State, 2019 Ark. App. 240, 574 S.W.3d 235. When reviewing a challenge to the
sufficiency of the evidence, this court views the evidence in the light most favorable to the
State and considers only the evidence that supports the verdict. Id. The sufficiency of the
evidence is tested to determine whether the verdict is supported by substantial evidence,
direct or circumstantial. Id. Substantial evidence is evidence that is of sufficient force and
character that it will, with reasonable certainty, compel a conclusion one way or the other,
without resorting to speculation or conjecture. Id. The credibility of witnesses is an issue
for the jury and not the court. Id.
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1. Jurisdiction
Guyton first argues that the trial court erred in denying his motion for directed
verdict, claiming that the Benton County Circuit Court lacked jurisdiction. More
specifically, he argues (1) that the State failed to prove that he had not registered in
Michigan, (2) that the trial court lost jurisdiction when he left the state, and (3) that the trial
court lost jurisdiction when he completed his sentence without the registration requirement
being noted on his 2002 sentencing order. For the reasons listed below, we are not
persuaded by Guyton’s arguments.
Generally, the State “is not required to prove jurisdiction or venue unless evidence
is admitted that affirmatively shows that the court lacks jurisdiction or venue.” Ark. Code
Ann. § 5-1-111(b) (Repl. 2013). Our supreme court has noted that “§ 5-1-111(b) created
a presumption in favor of jurisdiction in the place where the charge is filed by the State.”
Cates v. State, 329 Ark. 585, 589, 952 S.W.2d 135, 137 (1997) (citing Higgins v. State, 317
Ark. 555, 558, 879 S.W.2d 424, 425 (1994)). Thus, the State need not offer proof of
jurisdiction unless there has been a showing of positive evidence that the offense occurred
outside the court’s jurisdiction. Smith v. State, 367 Ark. 274, 284, 239 S.W.3d 494, 502
(2006) (citing Findley v. State, 307 Ark. 53, 818 S.W.2d 242 (1991)); DeWitt v. State, 306
Ark. 559, 561, 815 S.W.2d 942, 943–44 (1991). Positive evidence consists of something
allowing the fact-finder to identify, based on the record, where the crime occurred. Dix v.
State, 290 Ark. 28, 32, 715 S.W.2d 879, 881 (1986).
The Sex Offender Registration Act provides very specific reporting requirements for
sex offenders. A registered sex offender who changes his address within the state must report
6
the change of address to the local law enforcement agency4 having jurisdiction no later than
ten days before he establishes residency or is temporarily domiciled at the new address. 5 Ark.
Code Ann. § 12-12-909(b)(1)(A) (Supp. 2015). Likewise, a registered sex offender who
seeks to change his address to another state must register the new address with the local law
enforcement agency having jurisdiction and with a designated law enforcement agency in
the state to which he is moving, no later than 10 days before he established residency or is
temporarily domiciled in the new state, if the new state has a registration requirement.6 Ark.
Code Ann. § 12-12-909(c)(1). A reporting violation is a strict-liability offense under the
Act, but an offender is afforded an affirmative defense if the person delayed reporting a
change of address because of an eviction, natural disaster, or any other unforeseen
circumstance and if the offender provided a new address to the local law enforcement agency
having jurisdiction no later than five business days after residency is established. Ark. Code
Ann. § 12-12-904(a)(2)(A)–(B).
Here, Guyton registered as a sex offender in Benton County, and the Pea Ridge
Police Department was the local law enforcement agency having jurisdiction under the act.
4
Local law enforcement agency having jurisdiction is defined as the “chief law
enforcement officer of the municipality in which a sex offender resides or expects to reside.
Ark. Code Ann. § 12-12-903(6)(A)(i).
5
Act 262 of 2019 has since changed the reporting requirement from ten days to five
days.
6
Act 262 of 2019 also changed the reporting requirement in this section from ten
days to five days.
7
Guyton provided the Pea Ridge Police department with a local address. He left his registered
address in May 2017, taking all his personal belongings. He never returned to his registered
address and never notified local law enforcement in Benton County of his new address as
required by the registration statute. Under each of the foregoing statutory schemes, Guyton
was required to register his new address with the local authorities in Benton County. He
failed to do so. The court clearly had jurisdiction under these facts.
2. Retroactivity of the 2003 amendments to the Sex Offender Registration Act
Guyton next argues that the trial court erred in denying his motion for a directed
verdict, arguing that he did not have a statutory duty to register as a sex offender because
the 2003 amendments to the Sex Offender Registration Act cannot be applied retroactively
to him. He claims that, because he was not incarcerated or under supervision at the time
the Act took effect, the new amendments could not be applied retroactively to him. He
further contends that the amendments could not be applied retroactively in the absence of
a notation on his 2002 sentencing order. His arguments have no merit.
First, we have previously addressed the retroactivity of the Sex Offender Registration
Act in Williams v. State, 2017 Ark. App. 526, 532 S.W.3d 614. In that case, Williams pled
guilty to rape in February 1993. He was sentenced to forty years in the Arkansas Department
of Correction but was discharged in June 2014. He was subsequently convicted for failure
to comply with the sex-offender registration statute. He appealed his conviction, arguing
that the State had failed to establish that he had to register as a sex offender because he was
convicted before the sex-offender-registration law was enacted and because his 1993
judgment and commitment order did not state that he had to register. We disagreed. We
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held that the State had established that Williams had been found guilty of committing a
registerable sex offense (rape) under § 12-12-903(13)(A); that Williams was incarcerated in
August 1997; that under our supreme court’s interpretation of § 12-12-905 the registration
and verification requirements of the Arkansas Sex Offender Registration Act applied to him;
and that, finally, nothing in § 12-12-906 requiring notation on the judgment and
commitment order altered our conclusion. We conclude that Williams is controlling.
Arkansas Code Annotated section 12-12-905(a)(1) requires registration by a person
who, on or after August 1, 1997, has been adjudicated guilty of a qualifying sex offense.
Fourth-degree sexual assault is a qualifying sex offense subject to the Act’s reporting
requirements. Ark. Code Ann. § 12-12-903(13)(i)(f). Guyton was convicted of this
qualifying sex offense in 2002. It makes no difference that his 2002 sentencing order did
not order him to register as a sex offender; he was required to register because he committed
a qualifying offense on or after August 1, 1997. A person is subject to the requirements of
the Sex Offender Registration Act regardless of whether it was reflected on the original
judgment. See Justus v. State, 2012 Ark. 91.
Further, the retroactive application of the registration statutes is not unconstitutional
because the registration requirements are regulatory rather than punitive in nature and
because there is a rational basis for the statute. See Wyly v. State, 2018 Ark. App. 505, at 4,
559 S.W.3d 326, 328; Ray v. State, 2017 Ark. App. 574, 533 S.W.3d 587. Accordingly, the
registration requirements can be retroactively applied to him. He was required to register as
a sex offender and failed to do so.
9
Next, Guyton contends that he had completed his sentence at the time the
amendment adding fourth-degree sexual assault as a “sex offense” became effective and that,
because he was not incarcerated or under “supervision,” the statute does not apply.
Essentially, without citation to authority, Guyton argues that a suspended imposition of
sentence is not community supervision under the Sex Offender Registration Act. We
disagree.
As the State notes, the attorney general has issued an opinion stating, “It is my
opinion that . . . a person who received a suspended imposition of sentence was under a
form of community supervision” and that the registration requirements applied to those
persons who received a suspended imposition of sentence. Op. Ark. Att’y Gen. No. 278
(1997). We recognize that attorney general opinions are not binding on this court, but we
have held that they can be persuasive. See Jefferson Cty. Election Comm’n v. Wilkins ex rel.
Jefferson Cty., 2018 Ark. 184, at 7, 547 S.W.3d 58, 62; Mississippi Cty. v. City of Blytheville,
2018 Ark. 50, 538 S.W.3d 822. Given the purpose for requiring registration, we cannot
conclude that suspended sentences should be treated any differently than probation or
parole. Therefore, we conclude that a suspended imposition of sentence is a form of
community supervision under the Sex Offender Registration Act.
Finally, Guyton was ordered to register as a sex offender in 2015 upon entry of his
guilty plea. He never directly challenged the court’s requirement that he register as a sex
offender and to do so now would be an impermissible collateral attack on the judgment. See
Wicks v. State, 2010 Ark. App. 499, 375 S.W.3d 769.
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B. Jury Instructions
Guyton next argues that the trial court erred in its instructions to the jury. He wanted
the court to instruct the jury regarding the law in existence in 2002—the time of his sex-
offense conviction. More specifically, he wanted the jury to be instructed that the sentencing
court was required to note the registration requirement on the judgment and disposition
order; that the registration statutes in 2002 did not include fourth-degree sexual assault as a
registerable offense; and that his 2002 judgment and commitment order did not require him
to register as a sex offender. He contends that the court’s failure to provide these instructions
was in error.
A party is entitled to a jury instruction when it is a correct statement of the law and
when there is some basis in the evidence to support giving the instruction. Barnes v. Everett,
351 Ark. 479, 492, 95 S.W.3d 740, 748 (2003). The trial court’s decision to give or reject
an instruction will not be reversed unless the court abused its discretion. Dodson v. Allstate
Ins. Co., 345 Ark. 430, 459, 47 S.W.3d 866, 885 (2001).
Here, Guyton proffered these jury instructions so that he could argue to the jury that
he was not required to register as a sex offender. Because Guyton was required to register
as a sex offender, the proffered jury instructions are not a correct statement of the law.
Therefore, the trial court did not abuse its discretion in rejecting the proffered instructions.
C. Admission of Evidence
As his last point on appeal, Guyton argues that the trial court erred in admitting his
previous registration forms into evidence, claiming that their introduction was more
prejudicial than probative. More specifically, he argues that there was no probative value
11
to entering the documents except to show that he registered unnecessarily once he was
directed to do so by his probation officer.
We have addressed this same argument before in Reed v. State, 2012 Ark. App. 225.
There, Reed was charged with failing to comply with the registration requirements, and
evidence of his previous failures to register as a sex offender was admitted. We found no
error in the admission of this evidence. We noted that the sex-offender-registration
requirements are mandatory and that failure to comply with those duties is a strict-liability
offense. Adkins v. State, 371 Ark. 159, 163–66, 264 S.W.3d 523, 526–27 (2007) (holding
that there is no mens rea component in a failure-to-register-as-a-sex-offender context).
Because it is a strict-liability offense, a person who fails to act in accordance with the
statutory requirements completes the offense. As such, we concluded that the disputed
evidence of Reed’s prior violation of the registration requirement was neither prejudicial
nor probative, but at worst, the evidence could be viewed as irrelevant or cumulative,
neither of which had prejudiced Reed. See also Smith v. State, 354 Ark. 226, 241, 118
S.W.3d 542, 551 (2003). Accordingly, we held that, in this strict-liability context, the
irrelevant and cumulative evidence was not prejudicial. See also Threadgill v. State, 347 Ark.
986, 69 S.W.3d 423 (2002). As such, we declined to say that the trial court abused its
discretion in admitting proof of Reed’s prior failure to comply with the mandatory-
reporting requirements set out by our legislature.
We conclude that Reed is controlling. Guyton failed to comply with the requirements
of the Sex Offender Registration Act. His failure to comply completed the offense. As such,
even if we were to hold that the evidence of his previous registrations and prior guilty plea
12
was inadmissible, Guyton was not prejudiced by the trial court’s admission of such evidence,
and no reversible error occurred.
Affirmed.
GLADWIN and BROWN, JJ., agree.
Tara Ann Schmutzler, for appellant.
Leslie Rutledge, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee.
13