Probation revocation reversed, remanded

Karren said while the appeals court acknowledges the lower burden of proof in probation hearings, with the change the Legislature made in 2015 it is clear it did not intend for this crime to be a strict-liability offense.

LITTLE ROCK — A registered sex offender sentenced to 16 years in prison in 2020 for failure to comply with reporting requirements had his case reversed and remanded after the state appeals court found the evidence wasn’t sufficient to support a circuit court’s finding that the man violated a condition of his suspended impositions of sentence.

The Arkansas Court of Appeals on Wednesday granted the appeal of Aaron McKay, 34, who argued the state presented no evidence during his revocation hearing that McKay knew the motel he was staying at was within 2,000 feet of a school or that he resided at the motel.

McKay is a registered Level 3 sex offender. In early 2020, the state filed petitions to revoke his suspended impositions of sentence in five cases. The cases included a 2010 conviction for sexual indecency with a child, and the other four cases were for failure to comply with reporting requirements under the Sex Offender Registration Act.

At the revocation hearing, Thomas Hammer, a detective with the Rogers Police Department, testified that police responded Jan. 25, 2020, to a motel to render aid to McKay, who was “having a bad reaction to some bad methamphetamines” and transported McKay to a hospital.

Hammer said that after consulting with McKay’s parole officer, he began investigating McKay’s living situation. Hammer obtained a receipt that showed McKay’s boss had paid for a room at the motel for McKay and his girlfriend. The employer told Hammer that McKay had said he was homeless and living out of his car, so he paid for McKay to stay at the motel for the week.

Court documents state Hammer did not testify how long McKay had stayed at the motel and the extent of his testimony was that “[the employer] said that he only paid for the first week with a credit card but did not pay for the other week [McKay and his girlfriend] were living in the room.”

Hammer said McKay never contacted his parole officer or otherwise reported he was staying at the motel, which was near a school.

Michael Diehl, a parole officer who had been assigned McKay’s case, testified that McKay had reported on Jan. 2 and Jan. 17 and told him that he was still living at his registered address in Gravette and had walked to his job and to the parole office.

Diehl said that was hard to believe because it was a six-hour walk, according to Google. Diehl said he also attempted two home visits to the Gravette address to no avail.

Court documents state McKay didn’t put on any witnesses during his revocation hearing.

The circuit court dismissed several of the counts in the petition but found that a preponderance of the evidence established that McKay had willfully violated the condition of his suspended imposition of sentence by committing a felony violation of Arkansas law, which prohibits Level 3 sex offenders from knowingly residing within 2,000 feet of a school.

The Arkansas Court of Appeals stated in court documents there was no evidence that McKay had been staying at the motel for longer than a week or that he kept any personal effects at the motel, and there was no record of his comings and goings. The court also stated even if McKay were residing at the motel, there is likewise no evidence that he knew, more likely than not, that he was within 2,000 feet of a school.

“Regarding the proximity element, the State did not introduce any map of the area. Nor did any witness discuss signs or sight lines or testify that the distance had even been measured,” Court of

Appeals Judge Brad Karren wrote. “Frankly, nothing beyond Hammer’s statement that the motel was within two thousand feet of Heritage High School was introduced.”

Karren wrote that prior to 2015, Arkansas law provided that a Level 3 sex offender may not reside within 2,000 feet of a school, essentially a strict-liability standard. He noted, however, that in 2015, the Legislature passed Act 376 amending the statute to read that Level 3 sex offenders may not knowingly reside within 2,000 feet of a school.

“This area of law is largely undeveloped since the addition of the knowingly requirement; any cases dealing with the residential requirement decided prior to the 2015 amendment are less persuasive,” Karren wrote. “Given the current statute and this record, we conclude that the State did not present sufficient evidence at the revocation hearing to establish that McKay knowingly resided within two thousand feet of a school.”

Karren said while the appeals court acknowledges the lower burden of proof in probation hearings, with the change the Legislature made in 2015 it is clear it did not intend for this crime to be a strict-liability offense.

“Accordingly,” Karren wrote, “when trying a case such as this, the bar should take caution that conclusory statements that a defendant is residing near a school is not sufficient to establish culpability, even with the lower burden of proof necessary for a [suspended impositions of sentence] revocation.”