Cite as 2022 Ark. App. 318

ARKANSAS COURT OF APPEALS

DIVISION II

No. CR-21-304

AARON MCKAY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

Opinion Delivered September 7, 2022

APPEAL FROM THE WASHINGTON

COUNTY CIRCUIT COURT

[NOS. 04CR-10-1589; 04CR-11-567; 

04CR-11-640; 04CR-14-1257; 04CR-14-

1590]

HONORABLE BRAD KAREN, JUDGE

REVERSED AND REMANDED

MIKE MURPHY, Judge

On February 3, 2020, the State filed petitions to revoke Aaron McKay’s suspended 

impositions of sentence (SIS) in five cases. The 2010 conviction was for sexual indecency 

with a child. The other four cases were for failure to comply with reporting requirements 

under the Sex Offender Registration Act, codified at Arkansas Code Annotated section 12-

12-904 (Supp. 2021). A hearing was held on the State’s petition, and the court revoked the 

suspended sentences in two of the failure-to-comply cases. McKay is serving two eight-year 

sentences, to run consecutively, for a total of sixteen years’ incarceration. McKay now appeals 

and argues that the evidence was not sufficient to support the circuit court’s finding that he 

violated a condition of his SIS contract. We reverse and remand. 
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McKay is a registered Level 3 sex offender. The petition to revoke alleged that McKay 

violated the condition of his SIS contract that he must not violate any law. Specifically, it 

alleged that he committed a new felony by living too close to a school and therefore violated 

residence restrictions that apply to registered Level 3 sex offenders.

At the revocation hearing, the following evidence was introduced. Detective Thomas 

Hammer testified that on January 25, 2020, the police responded to a motel to render aid 

to McKay, who was “having a bad reaction to some bad methamphetamines,” and McKay 

was transported to the hospital. After consulting with McKay’s parole officer, Detective 

Hammer began investigating McKay’s living situation. He obtained a receipt that showed 

McKay’s boss had paid for a room at the motel for McKay and his girlfriend. The employer 

later 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. No receipts were introduced. Hammer did not 

testify how long McKay had been staying at the motel. In fact, the extent of Hammer’s 

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.” He 

said that McKay never contacted his parole officer or otherwise reported that he was staying 

at the motel, which was near a school.

Officer Michael Diehl, a parole officer who had been assigned McKay’s case in 

November 2019, also testified. Officer Diehl said that McKay had reported on January 2 and 

17 and told him that he was still living at his registered address in Gravette and walked to 

his job and to the parole office. Diehl said this was hard to believe because it was a six-hour 
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walk according to Google. He said that he had also, in the two months prior, attempted two 

home visits to the Gravette address to no avail. 

The State rested. McKay did not put on any witnesses. The 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 SIS by committing a felony violation of 

Arkansas Code Annotated section 5-14-128(a) (Supp. 2021), which prohibits Level 3 sex 

offenders from knowingly residing within two thousand feet of a school. On appeal, McKay 

argues that the State presented no evidence that he knew the motel was within two thousand

feet of a school or that he resided at the motel. 

To revoke an SIS, the State must prove by a preponderance of the evidence that the 

defendant has inexcusably violated a condition of the suspension. Gonzales v. State, 2020 

Ark. App. 219, at 3, 599 S.W.3d 341, 343. A circuit court’s revocation of an SIS will be 

affirmed on appeal unless the decision is clearly against the preponderance of the evidence. 

Id. This court defers to the circuit court’s determinations regarding witness credibility and 

the weight to be accorded testimony. Id.

Prior to 2015, Arkansas Code Annotated section 5-14-128 provided that a Level 3 sex 

offender may not reside within two thousand feet of a school, essentially a strict-liability 

standard. In 2015, however, the legislature passed Act 376 amending the statute to read that 

Level 3 sex offender may not knowingly reside within two thousand feet of a school. Compare 

Ark. Code Ann. § 5-14-128 (Supp. 2009) with Ark. Code Ann. § 5-14-128 (Supp. 2015). This 

area of law is largely undeveloped since the addition of the knowingly requirement; any cases 
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dealing with the residential requirement decided prior to the 2015 amendment are less 

persuasive. 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. 

A criminal defendant’s intent or state of mind is seldom capable of proof by direct 

evidence. Campbell v. State, 2019 Ark. App. 297, at 7, 577 S.W.3d 729, 734. Criminal intent 

can be inferred from one’s behavior under the circumstances, and it is presumed that one 

intends the natural and probable consequences of one’s acts. Harmon v. State, 340 Ark. 18, 

26, 8 S.W.3d 472, 477 (2000). The fact-finder “may draw upon common knowledge and 

experience to infer the defendant’s intent from the circumstances.” Id. at 27, 8 S.W.3d at 

477. An element may be inferred by circumstantial evidence when there is no other 

reasonable explanation for the accused’s conduct. Campbell, 2019 Ark. App. 297, at 8, 577 

S.W.3d at 734. The State would have us reason that the knowingly element could be inferred 

because McKay has a history of noncompliance with the Sex Offender Registration Act such 

that he is aware of the places he is prohibited from living, which is further inference of 

McKay’s consciousness of guilt. We disagree. When the legislature enacted Act 376, it clearly 

did not intend for this to be a strict-liability offense. 

A person acts knowingly when he is aware that his conduct is of that nature or that 

the attendant circumstances exist. Ark. Code Ann. § 5-2-202(2)(A) (Repl. 2013). He could 

also act knowingly when he is aware that it is practically certain his conduct will cause the 

result. Ark. Code Ann. § 5-2-202(2)(B). The State introduced nothing that could tick either 
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of these boxes. Regarding the residing element, there was no evidence that he 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. But even if he were residing at the motel, 

there is likewise no evidence that he knew, more likely than not, that he was within two 

thousand 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 sightlines or testify that the distance 

had even been measured. Frankly, nothing beyond Hammer’s statement that the motel was 

within two thousand feet of Heritage High School was introduced. 

We acknowledge the lower burden of proof in probation hearings, but with the 

change in 2015, the legislature made it clear that it did not intend for this crime to be a 

strict-liability offense. Accordingly, 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 an SIS revocation.

Reversed and remanded. 

HARRISON, C.J., and WHITEAKER, J., agree. 

Kezhaya Law PLC, by: Sonia A. Kezhaya and Matthew A. Kezhaya, for appellant.

Leslie Rutledge, Att’y Gen., by: David L. Eanes, Jr., Ass’t Att’y Gen., for appellee.