When “Transient” Status Is Disputed, Kansas Courts Must Instruct on KORA’s Statutory Definitions—Failure Is Clear Error

Introduction

In State v. Ballard, the Kansas Supreme Court clarified a critical procedural safeguard in prosecutions under the Kansas Offender Registration Act (KORA): when the State’s case turns on whether a registrant is “transient,” the jury must be instructed on KORA’s statutory definitions of “transient,” “residence,” and “reside.” The Court held that failing to do so—where the statutory meanings depart from common usage and where witnesses or argument proceed on non-statutory understandings—is clear error requiring reversal.

The case arose from two 2021 KORA violations charged against Benjamin A. Ballard: (1) failure to register during his birth month (October), which he did not appeal; and (2) failure to register in September as a transient, a classification that carries 30-day reporting under K.S.A. 22-4905(f). Ballard challenged the second conviction on two grounds: (a) the State failed to prove beyond a reasonable doubt that he was a transient who failed to register; and (b) the district court committed clear error by omitting KORA’s statutory definitions from the jury instructions.

The Supreme Court reversed the transient-registration conviction on the instructional issue, concluding it was firmly convinced the jury would have reached a different result if correctly instructed. It nevertheless found the evidence legally sufficient to permit retrial. Justice Rosen, joined by Justice Standridge, concurred in the instructional analysis but would have found the evidence insufficient and directed dismissal.

Summary of the Opinion

K.S.A. 22-4905(f) requires “transient offenders” to register every 30 days (or more often at the registering agency’s discretion).
Under K.S.A. 22-4902(l), “transient” means having no fixed or identifiable residence; K.S.A. 22-4902(k) defines “residence” as a particular and definable place (or places) where an individual resides; and K.S.A. 22-4902(j) defines “reside” to include staying, sleeping, or maintaining one’s person and property at a particular place, even temporarily, and creates a presumption of residence after 3 consecutive days or 10 nonconsecutive days within 30 days.
It was clear error not to instruct the jury on these statutory definitions when:
- the State’s evidence of transiency was sparse;
- some evidence supported a finding that Ballard was not transient;
- KORA’s definitions materially differ from common understandings; and
- the State’s witnesses used definitions inconsistent with KORA.
The Court reversed the Court of Appeals and district court and remanded for further proceedings on the transient count.
Despite the instructional error, the evidence—viewed in the State’s favor—was sufficient to permit a properly instructed jury to find guilt beyond a reasonable doubt; therefore, retrial is not barred.
Justice Rosen, joined by Justice Standridge, would have found the evidence insufficient and ordered dismissal.

Analysis

Statutory Framework and the Core Dispute

The transient-registration charge turns on K.S.A. 22-4905(f), which imposes a 30-day reporting requirement on “transient offenders.” KORA defines the key terms:

Transient (K.S.A. 22-4902[l]): having no fixed or identifiable residence.
Residence (K.S.A. 22-4902[k]): a particular and definable place where an individual resides; KORA contemplates multiple residences.
Reside (K.S.A. 22-4902[j]): to stay, sleep, or maintain with regularity or temporarily one’s person and property in a particular place; creates a presumption of residence after 3 consecutive days (or parts of days) or 10 nonconsecutive days within 30 days.

The case’s central dispute was whether Ballard was transient during September 2021. The State’s witnesses (two Sedgwick County registration-unit employees and a KBI records custodian) largely described “transient” as having “no permanent address,” and the prosecutor repeatedly framed transiency in terms of lacking a permanent home. Ballard, however, had reported his brother’s physical address in August 2021, and his brother testified that Ballard slept on his couch and ate at his home throughout September and into mid-October. These facts positioned the case squarely within KORA’s choice to define residence functionally (i.e., staying, sleeping, or maintaining person/property), temporarily or regularly, with a presumption based on 3/10-day thresholds.

Precedents Cited and How They Shaped the Decision

State v. McLinn, 307 Kan. 307 (2018): Provides the three-step jury-instruction review: preservation/jurisdiction; legal/factual appropriateness; and reversibility. The Court applied McLinn to reach the clear-error standard (because Ballard did not request the instruction) and to decide reversibility.
K.S.A. 22-3414(3): Codifies “clear error”—where the appellant must firmly convince the appellate court that the jury would have reached a different verdict but for the error.
State v. Coleman, 318 Kan. 296 (2024): Jury instructions are adequate if they fairly state the law and are not likely to mislead. The Court used Coleman’s standard to evaluate whether leaving the terms undefined misled the jury.
State v. Hambright, 318 Kan. 603 (2024): Courts need not define every term; juries may apply common meanings. But this presumes the Legislature used ordinary meaning. Ballard turns precisely on the opposite: KORA uses specialized, not common, meanings.
State v. Edwards, 318 Kan. 567 (2024): Courts must give meaning to the Legislature’s words without adding or omitting. The Court relied on this principle to distinguish “fixed” from “identifiable” residence and to give full effect to KORA’s distinct definitions.
State v. Whitaker, 255 Kan. 118 (1994): Pattern instructions (PIK) are not sacrosanct; judges must modify them as required by the case. Ballard underscores that PIK 63.140 may need supplementation where “transient” status is contested.
Supreme Court Rule 8.03 and State v. Cantu, 318 Kan. 759 (2024): Issues not raised via petition/cross-petition are not preserved. The State did not cross-petition to defend the panel’s determination that the instruction was legally/factually proper; that point was therefore not before the Court.
State v. Stuart, 319 Kan. 633 (2024): Waiver by failure to brief. The State did not dispute that transient status was a jury question; any contrary argument was waived.
State v. Dotson, 319 Kan. 32 (2024): Courts presume jurors follow instructions. The Court invoked this presumption in assessing how proper definitions could have altered deliberations.
K.S.A. 60-413 and State v. Holder, 314 Kan. 799 (2022): Explains how presumptions operate—from proof of one fact to the presumption of another. This was central to the 3/10-day presumption of residence in K.S.A. 22-4902(j).
State v. Buchanan, 317 Kan. 443 (2023), and State v. Chandler, 307 Kan. 657 (2018): Articulate the sufficiency-of-the-evidence standard (viewed in the light most favorable to the State; no reweighing).
State v. Scott, 285 Kan. 366 (2007): Double jeopardy bars retrial if evidence was insufficient. The majority found sufficiency; Justice Rosen would have found insufficiency and barred retrial.

Legal Reasoning

1) The instructions failed to present the jury’s real task

The elements instruction for the transient count stated that Ballard “failed to register every 30 days, as ordered by the Sedgwick County Sheriff due to his transient status.” This phrasing effectively assumed the predicate—i.e., that he was properly classed as transient—rather than charging the jury to decide transiency based on KORA. By contrast, the birth-month count asked only whether he failed to register in October, a straightforward question. Neither instruction asked the jury to decide whether the KORA-defined obligations attached in the first place.

Because Ballard contested transiency at trial, the jury needed clear direction to decide whether he was transient under K.S.A. 22-4902(j)-(l). The State waived any argument that transiency was not a jury question. And PIK 63.140 did not relieve the court from tailoring instructions to the case.

2) KORA’s definitions materially depart from common meaning and from the testimony the jury heard

The case turned on the gulf between statutory and common definitions:

“Transient” in KORA is not “no permanent address” but “no fixed or identifiable residence.” “Identifiable” is broader than “fixed.”
“Residence” under KORA includes multiple places and is defined functionally, not by legal domicile or permanence.
“Reside” captures temporary presence—staying, sleeping, maintaining person or property—with a presumption after 3 consecutive or 10 nonconsecutive days in 30 days.
Common definitions (and K.S.A. 77-201 Twenty-third’s general definition for statutes lacking a definition) emphasize permanence, intent to return, and singular residence—features that KORA explicitly relaxes or rejects.

The State’s witnesses repeatedly equated transiency with lacking a “permanent” address and suggested that the way out of transient status was to acquire a “permanent” home. The prosecutor echoed the same theme. None of this aligned with KORA’s text. The testimony thus risked actively misinforming the jury in the absence of controlling statutory definitions.

3) The error was “clear” because it likely altered the verdict

The Court found “scant” State evidence of transiency when measured against KORA’s definitions and presumption. Ballard listed his brother’s address on a change-of-information form in August and reportedly went to his brother’s home daily. His brother testified he slept there throughout September. Even without crediting all of the brother’s testimony, the State’s own evidence supported the inference that Ballard satisfied the 3/10-day presumption of residence at his brother’s address. The jury, however, was never told that such temporary or regular presence can defeat “transient” status under KORA, and it was repeatedly told (incorrectly) that “permanence” was the touchstone.

Against that backdrop, the omission of statutory definitions was not a minor omission but a fundamental misdirection: it steered the jury to apply an alien standard. The Court was firmly convinced that proper instructions would likely have produced a different verdict, satisfying K.S.A. 22-3414(3)’s clear-error standard.

4) Sufficiency of the evidence still allowed retrial

Although the evidence was not robust, a rational jury could have found—viewed in the State’s favor—that Ballard was transient based on his self-report and the deputy’s description of offenders who list an address but say they only stay there from time to time while being otherwise homeless. The absence of a September registration in agency records also supported the “failure to register” element. Thus, retrial is permitted. Justice Rosen would have gone further, finding the evidence legally insufficient and barring retrial.

Impact and Implications

Immediate consequences for KORA prosecutions

Jury instructions in transient-registration cases must include K.S.A. 22-4902(j)-(l)’s definitions when status is contested or when trial evidence/argument risks relying on common meanings that diverge from the statute.
Prosecutors should not rely on “permanent address” concepts; they must tailor proofs to “fixed or identifiable residence,” “reside” as staying/sleeping/maintaining, and the 3/10-day presumption.
Registration units should reassess administrative practices and testimony templates that equate transiency with “no permanent address.” “Identifiable” places where an offender stays, sleeps, or maintains person/property—even temporarily—can constitute residences under KORA.
Pattern instruction PIK Crim. 4th 63.140 may require modification to add a separate element requiring the State to prove the defendant was a “transient offender” and to supply the statutory definitions.

Likely appellate effects

Cases on direct appeal involving similar omissions where “transient” status was disputed may be vulnerable to reversal under clear-error review, especially if witness definitions or closing argument leaned on “permanent address” notions.
Where defendants did not request the instruction, Ballard provides a strong pathway to reversal if the record shows confusion between statutory and common meanings and some evidence supporting non-transiency.
By preserving sufficiency, Ballard limits relief to remand in most cases; however, the Rosen concurrence signals potential future fractures regarding evidentiary sufficiency in thin-record cases.

Substantive clarification of KORA

“Transient” is broader than “homeless” and narrower than “not permanent”: the decisive concept is the absence of any fixed or identifiable residence, and “identifiable” draws in places where the offender temporarily stays/sleeps/maintains person/property.
The 3/10-day presumption is now front-and-center in transiency disputes; defense counsel should marshal calendars, witness accounts, and documentary proof showing temporary but regular presence at identifiable places.
Listing a current physical address, frequenting a residence daily, or couch surfing at one address can defeat “transient” status if it satisfies K.S.A. 22-4902(j)’s thresholds.

Complex Concepts Simplified

KORA: Kansas Offender Registration Act (K.S.A. 22-4901 et seq.), which imposes reporting obligations on certain offenders.
Transient offender: Under K.S.A. 22-4902(l), someone with no fixed or identifiable residence. If an offender has any identifiable residence (even temporary), they may not be “transient.”
Residence vs. reside: “Residence” is a particular and definable place where the person “resides.” To “reside” (K.S.A. 22-4902[j]) means to stay, sleep, or maintain one’s person/property—regularly or temporarily—at a particular place. KORA allows multiple residences.
3/10-day presumption (K.S.A. 22-4902[j]): If an offender stays/sleeps/maintains person/property at a location for 3 consecutive days (or parts of days), or 10 nonconsecutive days in a 30-day period, it is presumed the offender resides there.
Clear error (K.S.A. 22-3414[3]): When a defendant did not request an instruction, appellate reversal requires the court to be firmly convinced the verdict would have been different but for the error.
Sufficiency of evidence: Appellate courts view the record in the light most favorable to the State and do not reweigh credibility. If a rational juror could find guilt beyond a reasonable doubt, the conviction can stand (subject to other errors).

Practical Guidance and Model Instruction Concepts

For trial judges

When “transient” status is disputed, add a separate element requiring the jury to find beyond a reasonable doubt that the defendant was a transient offender during the relevant period.
Supply the statutory definitions:
- “Transient means having no fixed or identifiable residence.”
- “Residence means a particular and definable place or places where an individual resides.”
- “Reside means to stay, sleep, or maintain with regularity or temporarily one’s person and property in a particular place. It is presumed that an offender resides at any location where the offender stays, sleeps, or maintains the offender’s person for 3 or more consecutive days or parts of days, or for 10 or more nonconsecutive days in a period of 30 consecutive days.”
Consider a cautionary instruction if any witness uses “permanent address” language inconsistent with KORA.

For prosecutors

Prove the absence of a fixed or identifiable residence; do not frame the case around “no permanent address.”
Address and rebut the 3/10-day presumption explicitly; show that no location meets K.S.A. 22-4902(j)’s thresholds.
Train agency witnesses to use statutory terminology and avoid conflating KORA with domicile or general residence concepts (e.g., K.S.A. 77-201 Twenty-third).

For defense counsel

Develop evidence of identifiable residences meeting the 3/10-day presumption (e.g., addresses, witness testimony, schedules, personal effects kept at the location).
Object to “permanent residence” framing and insist on KORA’s statutory definitions in instructions and testimony.
Use Ballard to argue clear error on appeal where definitions were omitted and the record reflects reliance on common meanings.

Conclusion

State v. Ballard is now the leading Kansas authority requiring trial courts to instruct juries on KORA’s statutory definitions of “transient,” “reside,” and “residence” when transient status is a contested element or when the record risks conflating common and statutory meanings. The Court’s analysis is text-driven and practical: it recognizes that KORA’s functional and multi-residence framework differs from everyday understandings—especially the emphasis on permanence—and that juries must be equipped to apply the law as written. Because witnesses and argument often default to “permanent address” notions, omission of the statutory definitions can materially mislead, as it did here.

The decision also meaningfully refines charging and proof strategies in KORA cases. Prosecutors must now center their cases on the statute’s “fixed or identifiable residence” framework and the 3/10-day presumption; defense counsel have a concrete pathway to rebut “transient” status through evidence of temporary but regular presence at identifiable addresses. For trial courts, Ballard is a clear directive to modify PIK instructions when necessary.

Ultimately, Ballard emphasizes fidelity to legislative text and to the jury’s factfinding role. When the proper definitions control and the jury is accurately instructed, verdicts will more reliably reflect KORA’s actual design—a design that prioritizes where an offender in fact stays, sleeps, or maintains person or property, even temporarily, rather than the permanence of any given address.