# In **the Missouri**  **Court of**  **Appeals**

**Eastern District** 

DIVISION TWO

MONTRELL JAMES, ) No. ED 104199

)

Respondent

, ) Appeal from the Circuit Court

) of St. Louis County

vs. )

)

MISSOURI STATE HIGHWAY PATROL, ) Honorable Barbara W. Wallace

)

Appellant

. )

) FILED: November 29, 2016

The Missouri State Highway Patrol ("Highway Patrol") appeals from the order and

judgment of the Circuit Court of St. Louis County removing Petitioner Montrell James

( " Petitioner " ) from the Missouri sex offender registry. We reverse.

I. Background

On October 2, 2012, Petitioner was indicted for attempted deviate sexual assault, two

counts of armed criminal action and second

- degree child molestation for his alleged actions on

November 7, 2009, with regard to a 15

- year

- old female while Petitioner was 18 years old

. The

indictment alleged Petitioner acted in concert with three other perpetrators in assaulting the

victim and that a firearm was displayed during the assault. An Information in Lieu of Indictment

filed on April 14, 2011, added two counts of first

- degree sexual misconduct. Also on April 14,

2011, Petitioner pled guilty to the two counts of first

- de gree sexual misconduct, in violation of2 Section 566.090 RSMo. 1 in the Circuit Court of St. Louis County ; he registered as a sex offender

with St. Louis County law enforcement immediately after his guilty plea

. He was sentenced on

November 3, 2011, to eigh t months in the St. Louis County Justice Center and given credit for all

time served.

On May 5, 2015, Petitioner filed a Petition for Declaratory Judgment and Removal From

Sex Offender Registry Pursuant to Missouri's statutes, Sections 589.400.8 and 589.4 00.9

, in the

Circuit Court of St. Louis County. After admitting that he was required to register as a sex

offender with the Missouri sex offender registry based on his 2011 guilty plea, Petitioner argued

he met the require ments for removal set forth in Se ction 589.400.8, including the requirement

that no force or threat of force was used in the underlying offense. He sought an order from the

court declaring he was no longer required to register. The Highway Patrol answered the petition,

denying Petitione r's claim that no force or threat of force was used in the commission of the

underlying offense.

The Highway Patrol filed a Motion to Dismiss, arguing that Petitioner was not eligible

for removal from the Missouri sex offender registry because (1) force o r threat of force was used

in the commission of the offense, and (2) he has an "independent, federally mandated registration

requirement" pursuant to the federal Sex Offender Registration and Notification Act

("SORNA"). Petitioner denied that he had any d uty to register under SORNA. The circuit court

heard and denied the Highway Patrol's Motion to Dismiss.

On December 3, 2015, the circuit court held an evidentiary hearing on Petitioner's

petition for declaratory judgment. Petitioner testified and denied that he used any physical force

during the sex offense or that a weapon was involved. During cross

- examination, the Highway

1 All statutory references are to RSMo

. (Supp 2015) unless otherwise indicated.3 Patrol impeached Petitioner with the juvenile victim's deposition testimony in which she testified

that a firearm was used during the assault. Petitioner testified that he had no recollection of the

events described by the victim in her deposition. The Highway Patrol then offered the victim's

deposition testimony from the underlying criminal case as evidence offered to impeach

Peti tioner's testimony. Petitioner objected to the deposition testimony on hearsay grounds, and

although the court physically accepted the deposition testimony, it indicated that it would not

review the deposition testimony unless and until the court deemed t he testimony admissible. At

the conclusion of the evidentiary hearing, the court requested further briefing from the parties as

to Petitioner's eligibility for removal from the registry and the admissibility of the deposition

transcript. The parties file d briefs outlining their positions on these issues.

The circuit court took judicial notice of its file from the underlying criminal case,

including the original Indictment and Information In Lieu of Indictment. Both referred to a

weapon being used in the assault.

On February 18, 2016, the circuit court entered a judgment sustaining Petitioner's hearsay

objection to the deposition testimony. The court found no evidence that force or threat of force

was used in the commission of the offense, Petitioner was not a threat to public safety, and he

was not a Tier II sex offender for federal SORNA purposes. Thus, the circuit court granted

Petitioner's request to be removed from the sex offender registry.

The Highway Patrol appeal s from the circuit court's ju dgment.

II. Discussion

The Highway Patrol raises two points on appeal. First, it alleges the trial court erred in

granting Petitioner's request to be removed from the Missouri sex offender registry, because

Petitioner's conduct makes him a sex offende r requiring registration pursuant to SORNA, in that4 Petitioner is a sex offender under 42 U.S.C. § 16911(1)

, and 42 U.S.C. § 16913(a) requires such

sex offenders to register in the jurisdiction where the offender resides.

Second, the Highway Patrol allege s the circuit court erred in not admitting prior

deposition testimony of the victim because the deposition was admissible in that it can be used

for any purpose in a civil case and deposition testimony from a criminal case can be used in a

subsequent civil case when the identity of the issues and parties are the same.

A. Standard of Review

An appellate court will reverse a judgment of a trial court when "it is not supported by

substantial evidence, is against the weight of the evidence, or erroneously dec lares or applies the

law." Doe v. Isom

, 429 S.W.3d 436, 439 (Mo. App. E.D. 2014); Murphy v. Carron

, 536 S.W.2d

30, 32 (Mo. banc 1976). Moreover, if an issue has already been decided, the question is one of

stare decisis

, which requires adherence to decid ed case precedents. Med. Shoppe Int'l, Inc. v.

Dir. of Revenue

, 156 S.W.3d 333, 334

- 35 (Mo. banc 2005).

B. Analysis

The Highway Patrol alleges the trial court erred in granting Petitioner's request to remove

him from the Missouri sex offender regist ry based on federal and state law.

First we examine the federal law that requires one to be registered as a sex offender.

Congress enacted the Sex Offender Registration and Notification Act ("SORNA") in 2006 as

part of the Adam Walsh Child Protection and Safety Act, Pub.L. 109

- 248, Tit. I, 120 Stat. 590.

Doe v. Keathley

, 344 S.W.3d 759, 762 (Mo. App. W.D. 2011). SORNA requires sex offenders

to "register, and keep the registration current, in each jurisdiction where the offender resides,

where the offender is an employee, and where the offender is a student," 42 U.S.C. § 16913(a).

Individuals subject to SORNA's registration requirements are identified in 42 U.S.C. § 16911(1),5 which provides that "[t]he term 'sex offender' means an individual who wa s convicted of a sex

offense." A sex offense is defined as "a criminal offense that has an element involving a sexual

act o r sexual contact with another," 42 U.S.C. 16911(5)(A)(i), or "a criminal offense that is a

specified offense against a minor." 42 U .S.C. § 16911(5)(A)(ii). A "specified offense against a

minor includes "criminal sexual conduct in volving a minor," 42 U.S.C. § 16911(7)(H), and " any

conduct that by its nature is a sex offense against a minor." 42 U.S.C. § 16911(7)(I) (emphasis

added). Under the federal statutes, a minor is a person under the age of 18

. 42 U.S.C. §

16911(14).

Furthermore, SORNA divides sex offenders into three categories: t ier I, t ier II, and t ier

III

. 42 U.S.C. § 16911(2)

- (3). Tier I is the least severe tier and includes all sex offenders that

are not tier II or tier III. 2 42 U.S.C. § 16911(2). Tier I sex offenders are required to register for

15 years, 42 U.S.C. § 16915(a)(1), unless they qualify for the clean record reduction, which

registration period is ten years. 42 U.S.C. § 16915(b)(2)(A). The "clean record" reduction

applies to offenders who have not been convicted of an offense "for which imprisonment for

2 Tier II sex offender means a sex offender other than a tier III sex offender whose offense is punishable by

imprisonment for more than 1 year and (A) is comparable to or more severe than the following offenses, when

committed against a minor, or an attemp t or conspiracy to commit such an offense against a minor:

(i ) sex trafficking;

(ii) coercion and enticement;

(iii) transportation with intent to engage in criminal sexual activity;

(iv) abusive sexual contact;

(B) involves

(i) use of a minor in a sexu al performance;

(ii) solicitation of a minor to practice prostitution; or

(iii) production or distribution of child pornography; or

(C) occurs after the offender becomes a tier I sex offender.

A tier III sex offender means a sex offender whose offense is punishable by imprisonment for more than 1 year and

(A ) is comparable to or more severe than the following offenses, or an attempt or conspiracy to commit such an

offense;

(i) aggravated sexual abuse or sexual abuse; or

(ii) abusive sexual contact against a minor who has not attained the age of 13 years;

(B) involves kidnapping of a minor (unless committed by a parent or guardian); or

(C) occurs after the offender becomes a tier II sex offender.

42 U.S.C

. § 16911(3)

- (4).6 more than 1 year may be imposed," who have not subsequently been "convicted of any sex

offense," a nd have completed any applicable probation or parole periods and "an appropriate sex

offender treatment program." 42 U.S.C. § 16915(b)(1).

Petitioner pled guilty in 2011 to two counts of first

- degree sexual misconduct, a sex

offense pursuant to chapter 566, RSMo. He admitted to conduct involving touching the breasts

of a 15

- year

- old female acquaintance without her consent. He was sentenced to eight months in

the St. Louis County Justice Center and given credit for all time served and was not subject t o

any probationary or parole period. Therefore, Petitioner was a tier I sex offender under SORNA

because his offense was a sex offense that did not rise to the level of a tier II or tier III sex

offense. Accordingly, tier I sex offenders are required to register for 15 years unless the offender

qualifies for the "clean record" reduction of ten years. 42 U.S.C. § 16915(b)(2)(A). Even

assuming that Petitioner's registration requirement for his 2011 conviction was ten years with the

"clean record" reductio n, his duty to register is still required until 2021. Otherwise his

registration requirement will last until 2026.

Petitioner argued in his petition for declaratory judgment and removal from the sex

offender registry that he met the requirements for re moval under Missouri's statute, Section s7 589.400

, subsections 8 and 9. 3 The circuit court granted that request. However, the circuit court

failed to consider that Petitioner's federally

- mandated duty to register as a sex offender pursuant

to SORNA operat es independently of any duty to register under Missouri's registration

requirement. Doe v. Keathley

, 290 S.W.3d 719 (Mo. banc 2009). In Doe v. Keathley

, the

defendant sex offenders were convicted prior to the enactment or revision of Section 589.400,

but subject to registration in Missouri pursuant to SORNA. Id. at 720. The re, the defendants

challenged the validity of Missouri's Sex Offender Registrati on Act (" SORA "), Sections 589.400

to 589.420, and claimed it violated the prohibition on ex post facto laws found in a rticle I, section

13 of the Missouri Constitution. Id. The Missouri Supreme Court concluded SORA did not

violate the const itution becaus e "SORNA imposed an independent obligation requiring

[defendants] to register as sex offenders in Missouri." Id.

3 Section 589.400.8 provides that

any person on the sexual offender registry for having been convicted of, found guilty of, or having

pled guilty or nolo contendere to an offense included under subsection 1 of this section may file a

pe tition after two years have passed from the date the offender was convicted or found guilty of or

pled guilty or nolo contendere to the offenses in the civil division of the circuit court in the county

in which the offender was convicted or found guilty of or pled guilty or nolo contendere to the

offense or offenses for removal of his or her name from the registry if such person was nineteen

years of age or younger and the victim was thirteen years of age or older at the time of the offense

and no physical force or threat of physical force was used in the commission of the offense, unless

such person meets the qualifications of this subsection, and such person was eighteen years of age

or younger at the time of the offense, and is convicted or found guilty o f or pleads guilty or nolo

contendere to a violation of section 566.068, 566.090, 566.093, or 566.095 when such offense is a

misdemeanor, in which case, such person may immediately file a p etition to remove or exempt his

or her name from the registry upon his or her finding or pleading of guilty or nolo contendere to

such offense.

Section 589.400.9(1) further provides that the court may grant such relief under subsection 8 of this section

if such person demonstrates to the court that he or she has complie d with the provisions of this section and is not a

current or potential threat to public safety. The prosecuting attorney in the circuit court in which the petition is filed

must be given notice, by the person seeking removal or exemption from the registr y, of the petition to present

evidence in opposition to the requested relief or may otherwise demonstrate the reasons why the petition should be

denied. Failure of that person seeking removal or exemption from the registry to notify the prosecuting attorn ey of

the petition shall result in an automatic denial of such person's petition. If the prosecuting attorney is notified of the

petition

, he or she shall make reasonable efforts to notify the victim of the crime for which the person was required

to regis ter of the petition and the dates and times of any hearings or other proceedings in connection with that

petition.8 Therefore, we find that Petitioner's duty to register in Missouri pursuant to SORNA

operates independently of any duty he may have under SORA

. Thus, even if Petitioner met the

requirements for removal in Sections 589.400.8 and 589.400.9, he still has a duty to register

under the federally mandated requirement of SORNA.

Moreover, Section 589.400.1(7) in Missouri dictates the SORA lifetime re gistration

requirements for any offender who "has been or is required to register" under federal law. Any

duty to register under SORNA triggers SORA's lifetime registration requirements pursuant to

Doe v. Toelke

, 389 S.W.3d 165 (Mo. banc 2012). In Toelke

, a sex offender admitted he

previously had a duty to register pursuant to SORNA, but his SORNA registration requirement

had expired. Id. at 166. Doe filed a declaratory judgment action in the circuit court claiming

that requiring him to register under S ORA was an unconstitutional retrospective application of

the law and that he had no duty to register under SORNA. Id. Reversing the trial court's

judgment in favor of the sex offender, t he Missouri Supreme Court held that when the state

registration requ irement is based on an independent federal registration requirement, article I,

section 13 is not implicated because the state registration requirement is not based solely on the

fact of a past conviction; instead, the state registration requirement is bas ed on the person's

present status as a sex offender who "has been" required to register pursuant to SORNA. Id. at

167

.

Accordingly, Petitioner's status as a SORNA sex offender triggers SORA's lifetime

registration requirement. Section 589.400.1(7). Pur suant to Missouri's statute, Petitioner is

required to register as a sex offender in Missouri for life even after his federal registration

requirement expires. Applying Missouri precedent that Petitioner's duty to register in Missouri

pursuant to SORNA op erates independently of any duty he may have under SORA

, we find that9 the circuit court erroneously applied the law when it issued its judgment and order. The

Highway Patrol's first point is granted. Because this point is dispositive of the appeal, we ne ed

not discuss the Highway Patrol's second point on appeal. We reverse and remand this case with

directions to the circuit court to deny Petitioner's request for removal from the sex offender

registry.

III. Conclusion

The circuit court's judgment is reversed and remanded with instructions to deny

Petitioner's request for removal from the sex offender registry.

___________________________________ ROY L. RICHTER, Judge

Sherri B. Sullivan, P.J., concurs.

Colleen Dolan, J., concurs.