                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-1243
                              Filed April 29, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KALANDIS R. McNEIL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, John Telleen, Judge.



      Kalandis McNeil appeals his conviction for failure to comply with sex-

offender registry requirements. AFFIRMED.




      G. Brian Weiler, Davenport, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.




      Considered by Bower, C.J., and May and Greer, JJ.
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BOWER, Chief Judge.

       Kalandis McNeil appeals his conviction for failure to comply with sex-

offender registry requirements as a habitual offender. We find the district court’s

denial of his motion for a new trial was not an abuse of discretion and affirm.

       I. Background Facts & Proceedings

       In November 2017, McNeil was on parole serving a special sentence for

sex offenders pursuant to Iowa Code section 903B.2 (2013). Due to the nature of

his offense, McNeil was also required to register as a sex offender pursuant to

Iowa Code section 692A.103(1). He wore a GPS tracking device as a condition of

his parole.   McNeil had last reported his residence to law enforcement in

September.1

       On November 13, a warrant was issued for McNeil’s arrest for failing to

report to his parole officer and failing to attend treatment. On November 14, McNeil

removed his GPS device. When the device stopped tracking, law enforcement

were unable to locate it or McNeil.

       In February 2018, officers tried to contact McNeil at his registered address,

but a “For Rent” sign was displayed, and the apartment appeared abandoned. The

officers located McNeil at a nearby hotel and arrested him. During the subsequent

interview with the officers, McNeil stated he did not have a home address, had

been staying “here and there,” including at a different hotel the previous week, and



1 Persons on the sex offender registry are required to register with the sheriff of
the county within five days of changing their residence or employment. Iowa Code
§ 692A.104. If the offender stays away from the primary residence for more than
five days, the new location must be provided to the sheriff of the county of principal
residence. Id. § 692A.105.
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had cut off and thrown the GPS device in the river. McNeil even stated, “I was

surprised they didn’t update my warrant.” When the officer said McNeil did not

come down and tell the registry officers where he was or what he was up to, McNeil

answered, “I couldn’t. I had a warrant.”

      McNeil    was    charged    with     violating   the   sex-offender-registration

requirements, second or subsequent offense as a habitual offender. He was also

charged with criminal mischief in the third degree for the damage done to the GPS

device. The matter proceeded to a jury trial on May 29 and 30.

      After all the evidence had been presented and before closing arguments,

the court reviewed the jury instructions with the State and McNeil. McNeil did not

object to any of the proposed instructions.2

      During deliberations, the jury sent a question to the court asking, “Is the

GPS part of the parole or part of the sex-offender registry requirements?” McNeil’s


2 The marshalling instruction, for failure to comply with sex-offender registry
requirements, Instruction 14, directs:
       The State must prove all of the following elements for failure to
       comply with sex offender registry requirements, under count 1:
               (1) The defendant was convicted of indecent exposure in
       Scott County Case No. SRCR35111, which required him to register
       as a sex offender as provided by chapter 692A.
               (2) That on or about 14th day of November, 2017, the
       defendant did knowingly:
               (a) Fail to notify the Scott County Sheriff’s Office of a change
       in relevant information within five business days; or
               (b) Fail to appear in person within five business days to report
       any change of residence to the Scott County Sheriff’s Office.
               (3) Defendant knew or should have reasonably known of his
       duty to fulfill requirements specified in chapter 692A.
               If the State has proved all of the elements, the defendant is
       guilty of failure to comply with sex offender registry requirements,
       under count 1. If the State has failed to prove one of the elements,
       the defendant is not guilty of failure to comply with sex offender
       registry requirements, under count 1.
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counsel suggested the answer should be “the GPS system is not part of relevant

information under jury instruction 16 and is not part of the sex offender registry

requirement.”3 The court told counsel,

         In my view this question by the jury in effect asks the court to tell
         them about the fact testimony from the witnesses that have already
         been provided or comment on or clarify the evidence. In other words
         whether the State’s evidence did or did not cover this topic. That I
         don’t think I can do. . . . I don’t think I can comment on or should
         comment on whatever evidence was or was not given, which is in
         effect what this jury question asks me to do.

         The court answered the jury, “Ladies and gentlemen, you must base your

verdict upon the evidence already provided and the jury instructions. Please re-

read the instructions with particular attention to instruction number 16.” Instruction

16 defined “relevant information” for the first of the two alternatives in the

marshalling instruction. McNeil objected to the answer, stating the court could

provide a specific answer indicating wearing the GPS was not part of the registry

requirement. The court overruled the objection.

         The jury convicted McNeil of failure to comply with sex-offender registry

requirements and criminal mischief and also made a special finding that McNeil

was a habitual offender.

         McNeil filed a motion for a new trial, claiming the State misrepresented the

law to the jury resulting in confusion, the court failed to clarify the law, and the


3   Instruction 16 provides:
          Relevant information as used in element 2 of Instruction 14 includes
          the following information with respect to a sex offender:
                  (1) Criminal history, including warrants, articles, status of
          parole, probation, or supervised release, date of arrest, date of
          conviction, and registration status; or
                  (2) Temporary lodging information including dates when
          residing in temporary lodging.
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verdict was based on a mistaken understanding of the law as it related to the GPS

device and the sex-offender registry requirements.

       The court denied the motion, and McNeil appeals on the same grounds.4

       II. Standard of Review

       “A district court should grant a motion for a new trial only in exceptional

circumstances.” State v. Ary, 877 N.W.2d 686, 705 (Iowa 2016). “To the extent

the motion [for a new trial] is based on discretionary grounds, we review it for an

abuse of discretion.” State v. Lopez, 633 N.W.2d 774, 781–82 (Iowa 2001).

       III. Analysis

       McNeil claims the State offered an invalid theory of guilt for the offense of

violating the sex-offender registry requirements based on the removal of his GPS

device. He contends this invalid theory led to jury confusion, as shown by the

question they submitted to the court. McNeil argues the court’s answer directing

the jury to reread the instructions, particularly instruction 16, did not correct the

confusion and resulted in a general verdict that some members of the jury may

have based on his alleged invalid theory of guilt.

       First, it is the province of the court, not the attorneys, to inform the jury of

what the law is, and this is done via a set of numbered instructions without

comment or explanation. See Iowa R. Crim. P. 2.19(5)(f); Iowa R. Civ. P. 1.924

(applying civil jury instruction rules to criminal cases). The court instructed the jury

at both the beginning and end of the trial that questions, comments, and arguments



4McNeil asserts the alleged errors deprived him of his due process rights. McNeil
makes no argument and cites no authority supporting this claim, so we deem it
waived. Iowa R. App. P. 6.903(2)(g)(3).
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by the lawyers are not evidence. The court further instructed “I as a judge will

instruct you as to the law that is to be applied to the case.” McNeil had the

opportunity to object to the jury instructions at the close of evidence and before

they were read to the jury—he made no objection to any of them, including the

marshalling instruction or the instruction defining “relevant information” for the jury.

Nor did McNeil object during closing arguments to alert the court he thought the

State was making a misstatement of law and presenting an invalid theory of guilt

at which point he could have requested a curative instruction.

       The jury instructions offered three alternative theories of guilt the State had

to prove: (1) McNeil failed to notify the Scott County Sheriff’s office of a change in

relevant information respecting his “criminal history, including warrants, articles,

status of parole, probation, or supervised release, date of arrest, date of conviction,

and registration status”; (2) McNeil failed to notify the Scott County Sheriff’s office

of a change in relevant information on his “temporary lodging information, including

dates when residing in temporary lodging”; or (3) McNeil failed “to appear in person

within five business days to report any change of residence to the Scott County

Sheriff’s Office.”

       “[J]uries are presumed to follow the court’s instructions.” State v. Becker,

818 N.W.2d 135, 162 (Iowa 2012), overruled on other grounds by Alcala v. Marriott

Int’l, Inc., 880 N.W.2d 699, 708 n.3 (Iowa 2016). Therefore, we presume the jury

disregarded any confusion of the law or evidence presented in counsel’s closing

argument and instead relied on the evidence presented through testimony and

exhibits and the law as set forth in the approved jury instructions.
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         As to the court’s answer to the jury’s question, the court expressly stated it

wanted to avoid commenting on the evidence provided. Our supreme court has

directed the trial court to “avoid drawing attention to specific evidence,” and avoid

arguing the case for either side. State v. Massick, 511 N.W.2d 384, 386 (Iowa

1994).

         The testimony offered linked the removal of the GPS device with the warrant

for McNeil’s arrest and the status of his parole. McNeil does not argue that the

warrant and parole status were not relevant information in the context of

instructions 14 and 16. Giving McNeil’s requested instruction as the court’s answer

would have constituted court comment on the evidence presented by the State.

See id. Instead, the court directed the jury to reread the law as set forth in the

instructions—instructions that McNeil had approved. The court did not abuse its

discretion in its answer to the jury.

         Finally, McNeil claims the jury entered a general verdict that may have been

entered on an invalid theory of guilt. Our supreme court has stated: “[I]n Iowa we

have consistently held if a general verdict is returned in which one theory should

not have been submitted and we cannot determine which theory the jury

embraced, the verdict is flawed.” State v. Tipton, 897 N.W.2d 653, 681 (Iowa

2017). The State offered three alternative theories of guilt, all of which had

supporting evidence in the record—evidence which included McNeil’s own words

during the police interview. The jury could reasonably have found McNeil failed to

update the sheriff’s office of the change in his relevant information, temporary

housing, and change in residence.
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         We find the court did not abuse its discretion in denying the motion for new

trial.

         AFFIRMED.
