                                                    MODIFIED: APRIL 27, 2009
                                                   RENDERED : APRIL 23, 2009
                                                           TO BE PUBLISHED
                  Q        (IT
                 6;VUyrrMr X.Ulurf           of `~Rr
                              2005-SC-000539-DG
                              2005-SC-000930-DG


COMMONWEALTH OF KENTUCKY                        APPELLANT/ CROSS-APPELLEE


                     ON REVIEW FROM COURT OF APPEALS
V.                      CASE NO . 2003-CA-001843-MR
                 MONTGOMERY CIRCUIT COURT NO. 01-CR-00069

KENNETH McBRIDE                                 APPELLEE/ CROSS-APPELLANT

     OPINION OF THE COURT BY SPECIAL JUSTICE MARK C. WHITLOW

                                  REVERSING

       This case involves the interpretation of the Kentucky Sexual Offender

Registration Act which was in effect in 2001 . The Kentucky General Assembly

subsequently has amended this Act, in part, to clarify some of the issues raised

in this case .

       On November 12, 1999, Appellee, Kenneth McBride (hereinafter referred

to as "McBride"), was convicted in a Tennessee court of the felony offense of

sexual battery and was sentenced to two years in confinement. In late January

2001, McBride moved from Tennessee to Mount Sterling, Kentucky, and began

working at Fast Change Lube Oil. In March 2001, Sergeant David Charles, of

the Mount Sterling Police Department, learned that McBride was registered as
a sex offender in Tennessee and was now living in Mount Sterling and working

at a quick change lube company in town . It is undisputed that in March of

2001, McBride was not registered as a sex offender in Kentucky .

      On May 11, 2001, McBride was indicted, pursuant to KRS 17 .510(7), for

failure to register as a sex offender in Kentucky on March 13, 2001 . McBride

did not register in Kentucky as a sex offender until May 7, 2001 . His case was

tried before a jury on August 20, 2003 . He was found guilty and sentenced to

four years' imprisonment .

      McBride appealed his conviction to the Kentucky Court of Appeals, which

reversed the judgment of conviction by a vote of 2-1 . The majority held that

because McBride was not given notice of the duty to register as a sex offender

in Kentucky as required by due process and KRS 17.510(6), his conviction

could not stand . In addition, the Court of Appeals held that implicit in the

statute is a mens rea element requiring that McBride had to act knowingly.

The Court of Appeals concluded that the trial court erred in refusing to include

a culpable mental state provision in the jury instructions.

      The Commonwealth moved for discretionary review which this Court

granted. A cross-motion for discretionary review also was granted. Having

reviewed the record and applicable law, this Court now reverses the decision of

the Kentucky Court of Appeals and reinstates the conviction of McBride .
          The Commonwealth and McBride raise several issues regarding the facts

 and law of this case. The basic disagreement between the parties is whether

 KRS 17 .510(6) or KRS 17.150(7) applies to McBride's situation . The language

 of each section of the statute as it existed in 2001 appears in a footnote to this

opinion.' The proper interpretation of this statute resolves most issues raised

by the parties.

          The construction and application of statutes is a matter of law.

Therefore, this Court reviews statutes de novo without deference to the

interpretations adopted by lower courts . Wheeler 8v Clevenger Oil Company

Inc . v. Washburn, 127 S.W.3d 609, 612 (Ky. 2004) . A basic rule in statutory

interpretation is that the "plain meaning" of the statute controls. Executive

Branch Ethics Commission v. Stephens , 92 S .W.3d 69, 73 (Ky. 2002) . This



                KRS 17 .5io(6) - "Any person who has been convicted in a court of another state . . . of a sex crime or
criminal offense against a victim who is a minor, or who has been committed as a sexually violent predator under the
laws of another state . . . shall be informed at the time of his or her relocation to Kentucky of the duty to register under
this section, and to comply with the requirements of subsection (4)(b) of this section, by the interstate compact officer
of the Department of Corrections or the Department of Juvenile Justice. The officer shall require the person to read
and sign any form that may be required by the cabinet, stating that the duty of the person to register under this
section has been explained. The officer shall order the person to complete the registration form, and the officer shall
facilitate the registration process. The officer shall then send the form, including any special conditions imposed by
the court or the Parole Board in the state of conviction to the Information Services Center, Kentucky State Police,
Frankfort, Kentucky 4o6oi, and to the appropriate local probation and parole office in the county of the registrant's
residence."

          KRS 17.510(7) - "If a person is required to register under federal law or the laws of another state or territory,
or if the person has been convicted of an offense under the laws of another state or territory that would require
registration if committed in this Commonwealth, that person upon changing residence from the other state or
territory of the United States to the Commonwealth or upon entering the Commonwealth for employment, to carry on
a vocation, or as a student shall comply with the registration requirement of this section and the requirements of
subsection (4)(b) of this section and shall register with the appropriate local probation and parole office in the county
of employment, vocation, or schooling. As used in this section, "employment" or "carry on a vocation" includes
employment that is full-time or part-time for a period exceeding fourteen (14) days or for an aggregate period of time
exceeding thirty (3o) days during any calendar year, whether financially compensated, volunteered, or for the purpose
of government or educational benefit. . . ."
rule also seeks to interpret the statute in accordance with the legislative intent.

Commonwealth v. Plowman, 86 S.W .3d 47, 49 (Ky. 2002) .

       McBride was charged under section (7) of KRS 17 .510. This statute

provided that "a person [who] is required to register under . . . the laws of

another state . . . upon changing residence from the other state . . . to the

Commonwealth . . . shall comply with the registration requirement, of this

section and the requirements of subsection (4) (b) of this section [. ]" In contrast,

KRS 17 .510(6) required the interstate compact officer of Kentucky's

Department of Corrections or Department of Juvenile Justice to inform a sex

offender "at the time of his . . . relocation to Kentucky of the duty to register

under this section, and to comply with the requirements of subsection (4)(b) of

this section. . . ."

       The Court of Appeals summarized the difference between these two

sections by stating "[e]ssentially, section (6) puts the onus on Kentucky to give

notice of the duty to register in Kentucky and then to assist the individual in

registering, while section (7) puts the onus on the individual to register in

Kentucky ." McBride v. Commonwealth, 2005 WL 1367463 (Ky.App. 2005) .

The court resolved this alleged conflict by concluding that due process requires

that an individual receive notice of a duty to register as a sex offender in

Kentucky before he has a duty to so register in Kentucky . McBride received no

notice from the Commonwealth regarding his duty to register as a sex offender.

                                          4
Therefore, because the Commonwealth failed to inform McBride of his duty to

register, it was improper to convict him .

      The Court of Appeals' majority relied, in part, upon the case of Lambert

v. People of State of California , 355 U .S. 225, 78 S .Ct. 240, 2 L.Ed.2d 228

(1957) . In that case, the Untied States Supreme Court determined whether a

municipal ordinance imposing a registration requirement on convicted felons

who remained in the city for more than five days violated due process . The

Court concluded that those charged under the ordinance must have actual

knowledge of the duty to register or proof of the probability of such knowledge

before they could be charged with failing to register under the ordinance. Id . at

229 . The Court of Appeals observed that the Supreme Court's decision turned

on three factors : (1) the conduct was passive; (2) the individual's status as a

convicted felon would not, in itself, put the individual on notice to inquire as to

the applicable law; and (3) the law was enacted solely for the convenience in

compiling a list which might be of some assistance to law enforcement

agencies.

      The Court of Appeals' majority also found support in the case of State v.

Bryant, 163 N.C.App . 478, 594 S .Ed .2d 202 (2004) in which the North Carolina

Court of Appeals considered a factual situation nearly identical to the one in

the present case. Relying upon Lambert, the North Carolina Court of Appeals

struck down the North Carolina sex offender registration statute as

                                        5
unconstitutional as applied to sex offenders convicted in other states who

moved to North Carolina . The Court held that due process requires either

actual or constructive notice to the out-of-state offender moving to North

Carolina of the requirement to register before he can be convicted of failing to

register in North Carolina .

       After the Court of Appeals issued its decision in this case, the Supreme

Court of North Carolina reversed the Bryant decision in the case of State of

North Carolina v. Bryan, 359 N.C . 554, 614 S .E .2d 479 (2005) . The North

Carolina Supreme Court, consistent with this Court's observations in H ay tt v .

Commonwealth , 72 S .W.3d 566 (Ky. 2002), emphasized the public safety

concerns implicit within the sex offender registration acts . Such laws are

widespread : "[b]y 1996 every state, the District of Columbia and the Federal

Government had enacted some variation of [a sex offender registration and

community notification program] . . . ." Smith v. Doe, 538 U.S . 84, 90, 123

S .Ct. 1140, 155 L.Ed .2d 164, 175 (2003) . Thus, convicted sex offenders had

been subject to registration throughout the fifty states for approximately six

years when, in 2001, defendant McBride and the defendant in the North

Carolina case were arrested for failing to register as a convicted sex offender in

their respective states.

      Given the pervasive presence and age of sex offender registration

statutes, the North Carolina Supreme Court concluded that North Carolina's

                                        6
sex registration law was not affected by the Supreme Court case of Lambert,

supra. To be entitled to relief under the narrow Lambert exception, a

defendant must establish that his conduct was "wholly passive" such that

"circumstances which might move one to inquire as to the necessity of

registration are completely lacking" and that the defendant was ignorant of his

duty to register and there was no reasonable probability that the defendant

knew his conduct was illegal . Lambert, su ra., 355 U.S . at 228-29, 78 S .Ct. at

243-44, 2 L.Ed .2d at 231-32 .

       Unlike the registration requirement in Lambert, the sex registration

statutes are directed at a narrow class of defendants, convicted sex offenders,

rather than all felons . These registration programs were specifically enacted as

public safety measures based upon legislative determinations that convicted

sex offenders pose an unacceptable risk to the general public once released

from incarceration. Significantly, a sex offender has actual notice of his lifelong

duty to register with the state of his conviction. Based upon these facts, the

North Carolina Supreme Court believed that a convicted sex offender's failure

to inquire into a state's registration obligations is neither entirely innocent nor

wholly passive. B ant, supra. , 614 S.E.2d at 488 . In upholding the North

Carolina sex registration act, the North Carolina Supreme Court stated as

follows:

            it would be nonsensical to allow sex offenders to
            escape their duty to register by moving to a state that
                                        7
               has not provided them with actual notice of their duty
               to register, and then claim ignorance of the law .

Id . at 488.

       KRS 17.510(6) and (7) can be interpreted in a manner which makes both

effective and complementary. As the dissenting opinion of Judge Johnson

notes, an interstate compact officer who is to inform a sex offender to register

must have knowledge that the sex offender has entered the Commonwealth

under subsection (6) . Once the officer has notice of the presence of the sex

offender, he is required to inform the sex offender of an obligation to sign forms

and then send the appropriate documents to specific offices . This Court agrees

with Judge Johnson's belief that

               the legislative intent of subsection (6) is to require the
               responsible Kentucky officials to follow certain
               procedures to ensure that the registration of sex
               offenders is timely and effectively completed.
               Subsection (6) was not enacted to give a right of notice
               to a sex offender, but for the sole purpose of
               facilitating the effective administration of the statute .
               This interpretation comports with the overall purpose
               of the statute to protect citizens of Kentucky from sex
               offenders .

McBride v. Commonwealth, supra. , Johnson, dissenting.

      This Court concludes that McBride was properly convicted under KRS

17 .510(7) . McBride argues that there was no proof that his alleged Tennessee

sex crime begetting registrant status was similar to a qualifying felony offense

under Kentucky law. It is true that KRS 17.510(7) applies in such a situation,

                                           8
 but it is also true that the statute applies "if a person is required to register

 under federal law or the laws of another state or territory . . . ." KRS 17.510(7) .

 At trial, the Commonwealth called officer Rudd Kerr of the Kentucky State

 Police (hereinafter referred to as "KSP"), who was in charge of the KSP sex

 offender unit which manages the sex offender registry . Officer Kerr testified

 that, according to his records, McBride was registered as a sex offender in

Tennessee in March of 2001 . Additionally, McBride's girlfriend in March of

2001, Darnella Bradley, testified that at one point after McBride moved in with

her in January 2001, she opened up McBride's address book and saw

McBride's Tennessee sex offender registration identification card . The above

evidence was sufficient proof that McBride was required to register as a sex

offender in Tennessee and, therefore, was subject to the plain meaning of KRS

17.510(7) .

       McBride next claims that he was not given notice of the duty to register

as required by KRS 17 .510(6) . This is true but irrelevant. This Court has

concluded that McBride had an absolute duty to register as a sex offender once

he became a resident of Kentucky as required by KRS 17.510(7) . The statute

which was the basis of McBride's conviction, KRS 17.510(7), does not require

that the Commonwealth provide him notice of his duty to register .

      Likewise, KRS 17.510(7) does not require a mens rea element specifically

requiring that the jury find that McBride "knowingly" failed to register as a sex

                                          9
 offender in Kentucky .. Failing to register as a sex offender under KRS 17.510(7)

 is an absolute liability crime . KRS 501 .030 provides that a person is not guilty

 of a criminal offense unless he voluntarily engaged in the conduct, and that he

 engaged in such conduct intentionally, knowingly, wantonly or recklessly as

 the law may require . However, a person may be guilty of an offense without

having a culpable state-of mind when "[t]he offense is defined by a statute other

than this Penal Code and the statute clearly indicates a legislative purpose to

impose absolute liability for the conduct described." KRS 501 .050(2) .

       KRS 17 .510 does not just set forth one felony offense. Under KRS

17.510(11), it is a Class D felony for "[a]ny person required to register under

this section" to violate any provisions of this section . Under KRS 17 .510(12), it

is a Class D felony for any person required to register to "knowingly" provide

false, misleading or incomplete information . There would be no reason for a

knowing mens rea to be stated in KRS 17.510(12) if there was not absolute

liability under KRS 17 .510 (11) . As the Kentucky Court of Appeals has noted,

            [w]here particular language is used in one section of a
            statute, but omitted in another section of the same
            statute, it is presumed that the legislature acted
            intentionally and purposefully in the disparate
            inclusion or exclusion .

Liquor Outlet, LLC v. Alcoholic Beverage Control Board, 141 S .W.3d 378, 385

(KY-App. 2004), citing Palmer v. Commonwealth, 3 S .W .3d 763 (Ky.App . 1999) .



                                        10
The legislature's use of the culpable mental state "knowingly" in KRS

 17 .510(12) underscores the legislature's intent that there is absolute liability

under KRS 17 .150(11), a subsection without any reference to mens rea.

       McBride claims that KRS 17.510(7) is unconstitutionally vague because

it does not define "residence ." Under the void-for-vagueness doctrine, a statute

is not unconstitutionally vague if it contains sufficient definiteness such that

ordinary people can understand what conduct is prohibited . Kolender v.

Lawson, 461 U .S . 352, 357, 103 S .Ct. 1855, 75 L.Ed.2d 903 (1983) .

Additionally, the doctrine requires that the statute be worded so as to not

encourage arbitrary or discriminatory enforcement. Id. Every term in a statute

need not be defined, and terms that are not defined are to be accorded their

common, everyday meaning . United States v. Haun , 90 F .3d 1096 (6th Cir.

1996), cert. denied , 519 U .S . 1059, 117 S .Ct. 691, 136 L.Ed.2d 614 (1997)

(holding that the term "proceeds" was not unconstitutionally vague in money

laundering statute) . "Residence" is defined as "the act or fact of dwelling in a

place for some time." Merriam-Webster's Collegiate Dictionary 993 (10th Ed .

2001) . The language of KRS 17 .510(7) was sufficiently definite to put McBride

on notice that if he failed to register as a sex offender when he changed his

place of dwelling from Tennessee, where he was registered as a sex offender, to

Kentucky, he would be guilty of the offense therein.
       McBride characterizes the testimony of Officer Kerr and an exhibit from

 the Tennessee Bureau of Investigation as inadmissible hearsay . Officer Kerr

 testified, in part, that (1) McBride was required to register in Kentucky because

 according to a form that Kerr received by fax from the Tennessee Bureau of

 Investigation, McBride had been registered as a sex offender in Tennessee; (2)

 the form bore what was purportedly McBride's signature and a date of

February 2, 2000; and (3) the form stated that McBride was obligated to notify

the Tennessee Bureau of Corrections of any information or changes lasting

more than ten days or be subject to penalties under law.

       This claim of error was not preserved by contemporaneous objection .

RCr 9 .22. Rather, the objection came more than an hour and a half after the

witness had been released. The objection came not only after the Court had

released the witness but also after the Commonwealth had closed its case.

Further review is not warranted . West v. Commonwealth, 780 S.W .2d 600 (Ky.

1989) . Even if such testimony and exhibit constituted hearsay, it was

harmless error to admit them because other admissible evidence in the case

clearly demonstrated that McBride was a registered sex offender in Tennessee.

His former girlfriend, Darnella Bradley, had testified that she was aware that

McBride was a registered sex offender and that McBride had a Tennessee

registered sex offender identification card. Detective Sergeant Charles, without

objection, also testified that McBride was a registered sex offender in

                                        12
 Tennessee. The admission of Officer Kerr's testimony and the exhibit from the

 Tennessee Bureau of Investigation were cumulative and therefore harmless

 error. The admission of such evidence did not have a reasonable possibility of

 contributing to the conviction . Anderson v. Commonwealth, 231 S .W.3d 117,

 122 (Ky. 2007) .

       McBride claims error in the admission of the testimony of Gerald Ledford

who testified from Fast Change Lube records that McBride was an employee of

that company in February and March 2001 . Mr. Ledford was not employed at

the business when McBride worked there, but Ledford testified from the

business records of the facility. The error of admitting such testimony was

harmless and not reversible under RCr 9 .24. Mr. Ledford's statements were

confirmed by Sergeant Charles with the Mount Sterling Police Department who

stated without objection that McBride was employed at the quick change lube

in that community. McBride's former girlfriend also testified without objection

that he had a job at the quick change on the bypass and had been living with

her for some time. The fact that McBride worked at the quick lube was well

established. The admission of Gerald Ledford's cumulative testimony was

harmless error.

      Finally, McBride argues that the judgment against him must be vacated

for want of jurisdiction . He was indicted as a felon under the 2000 version of

the Sex Offender Registration Act. In Peterson v. Shake, 120 S.W .3d 707 (Ky.

                                       13
 2003), it was held that KRS 17 .5 10(11), as amended in 2000, is inapplicable to

 anyone who had acquired the status of registrant before its effective date of

April 11, 2000. The court further held that those violating registrant

requirements after April 11, 2000, but who had acquired registrant status

before that date, can only be prosecuted for a Class A misdemeanor. The

Circuit Court would have no jurisdiction unless such a charge is joined with a

felony.

      Although McBride was convicted in Tennessee in 1999, he would not

have acquired registrant status under KRS 17.510 until he changed his

residency from Tennessee to Kentucky . McBride moved to Kentucky in

January 2001, nine months after the effective date of the amended KRS

17.510(11) . Therefore, McBride was properly charged and convicted under the

amended statute, as that is the version applicable at the time he should have

registered in Kentucky .

      For the foregoing reasons, the opinion of the Court of Appeals is

REVERSED and the jury verdict rendered in the Montgomery Circuit Court is

REINSTATED .

      Minton, CJ. ; Scott and Venters, JJ., concur. Noble, J . concurs in part

and dissents in part by separate opinion in which Abramson, J . and Special

Justice Jeffrey C. Mando, joins. Cunningham and Schroder, JJ., not sitting.



                                       14
 COMMONWEALTH OF KENTUCKY V. KENNETH MCBRIDE, 2005-SC-
 000539-DG and 2005-SC-000930-DG :


       JUSTICE NOBLE, CONCURRING IN PART AND DISSENTING IN PART:

       I agree with the majority that Appellee McBride had a duty to at least

 instigate an inquiry about proper registration procedures in Kentucky . Before

 he can effectively take all the steps required by the registration statute, KRS

 17 .510, officials must first know that the convicted sex offender has moved to

Kentucky . And while the interstate compact may end up sending that

information to Kentucky, this fact is certainly known by the convicted offender,

whereas officials have little or no ability to ascertain it independently. Add to

that the fact that Appellee had a sex offender identification card from another

state which indicated his knowledge of a registration requirement, and it is

apparent that the offender should, and does, have the burden of going forward

with notice to the state where he has relocated. In fact, the statute now

specifically requires it, though it was a reasonable burden before the latest

amendment.

      Where I depart from the majority is with its view that Appellee is subject

to a felony charge for his failure to notify proper authorities of his relocation to

Kentucky . Under the current version of the statute, and the one in place in

1998, convicted sex offenders are required to register with the appropriate



                                         15
 authorities after their release from confinement. (Within ten days in 1998; five

 days after 2000) . Thereafter, if their residence address changes, they must

 register where they then reside. In 1998, the failure to register was a Class A

 misdemeanor offense. Since April 11, 2000, it has been a Class D felony

 offense .

        In 2003, this Court held in Peterson v. Shake, 120 S.W .3d 707 (Ky. 2003)

 that where an offender was released from prison and registered as a sex

offender before the 2000 version of KRS 17 .510 became effective, the offender

was subject to the earlier version of the statute which set the penalty for a

violation of the statute as a Class A misdemeanor . Peterson had registered as

a sex offender in 1999, on his release from custody. However, in 2001,

Peterson relocated without notifying authorities of his new address. He was

charged with failure to register, as a Class D felony, which was the penalty in

the version of the statute then in effect. He sought a writ of prohibition to

prevent the circuit court from proceeding with a felony trial against him,

claiming that he had already registered prior to enactment of this penalty, and

that while he had violated the statute by failing to re-register when he moved,

he could only be charged with a misdemeanor, the penalty in effect when he

was released from custody and initially registered . This Court agreed with him,

and issued the writ declaring that the circuit court had no jurisdiction to

proceed against Peterson absent a felony charge to which the failure to register

                                       1.6
 could be pendent .

       In its reasoning, this Court pointed out that Peterson could not "become"

 a registrant, because he already was one, and that the plain language of the

 2000 amendment made it clear that it was intended to apply to new

 registrants, not those who had already been registered . The fact that Peterson

 was a violator under the present version of the statute did not mean that the

penalty could be changed because he had secured his release before the

current version of the statute was enacted . To further clarify, I would say that

the primary question is whether one already is a registrant versus if one is just

re-registering in a new place .

      The 1998 version of the statute, which applies to Appellee as it applied to

Peterson, carried a Class A misdemeanor penalty, and required a person

moving to this state to register if the person was "required to register as a sex

offender under . . . the laws of another state . . . ." The prefatory language,

"required to register as a sex offender under . . . the laws of another state,"

proves the obvious : that Appellee was already a registrant . The only difference

between him and Peterson is that Peterson first registered in Kentucky, while

Appellee first registered in Tennessee . As the record makes equally obvious, it

is not difficult to determine the date when Appellee was released from

confinement and registered in Tennessee. There is nothing in the statute that

requires a registrant from another state to be treated differently than a

                                        17
registrant from Kentucky, nor could such be supportable under federal

constitutional principles.

      Abramson, J., and Special Justice Jeffrey C. Mando, join .



COUNSEL FOR APPELLANT/ CROSS-APPELLEE :

JACK CONWAY
ATTORNEY GENERAL OF KENTUCKY

HONORABLE GREGORY C. FUCHS
OFFICE OF ATTORNEY GENERAL
CRIMINAL APPELLATE DIVISION
1024 CAPITAL CENTER DRIVE
FRANKFORT, KY. 40601-8204


COUNSEL FOR APPELLEE/ CROSS-APPELLANT :

HONORABLE IRVIN J. HALBLEIB, JR.
P.O . BOX 16175
LOUISVILLE, KY. 40256
             ,,Suyr=:e (9vurf of                         vufurkV

                                2005-SC-000539-DG
                                2005-SC-000930-DG



COMMONWEALTH OF KENTUCKY                          APPELLANT/CROSS-APPELLEE


                  ON REVIEW FROM THE COURT OF APPEALS
V.                      CASE NO. 2003-CA-001843-MR
                 MONTGOMERY CIRCUIT COURT NO. 01-CR-00069


KENNETH McBRIDE
                                                  APPELLEE/CROSS-APPELLANT


                                       ORDER

       The Opinion of the Court rendered April 23, 2009, is corrected on its face

by substitution of the attached pages 1 and 18 in lieu of pages 1 and 18 of the

original opinion . Said correction does not affect the holding of the original

Opinion of the Court.

       ENTERED: April 27, 2009
