Dixon v. Mo. State Highway Patrol

583 S.W.3d 521

Danny Joe DIXON, Respondent,

v.MISSOURI STATE HIGHWAY PATROL, et al., Appellants.

WD 82346

Missouri Court of Appeals, Western District.

Filed: September 24, 2019

Caleb J. Aponte, Jefferson City for appellant.

Stephen K. Griffin, Cameron for respondent.

Before Division One: Cynthia L. Martin, P.J., and Victor C. Howard and Alok Ahuja, JJ.

Alok Ahuja, Judge

In 2003, Danny Dixon pleaded guilty to sexual misconduct in the third degree, a class C misdemeanor. He was given a suspended imposition of sentence, and successfully completed his two-year probationary period. As required by Missouri law, Dixon registered as a sex offender beginning in 2003. In 2018, he filed a petition in the Circuit Court of Andrew County to have his name removed from the sex offender registry. The circuit court granted Dixon’s petition, and ordered that he be removed from the registry. The Missouri State Highway Patrol appeals. It argues that the circuit court erred in granting Dixon’s removal petition because Dixon is a "tier III" offender subject to a lifetime registration obligation under §§ 589.400.4(3) and 589.401.3.¹ We conclude that Dixon is a "tier I" offender, and that he was accordingly eligible for removal from the sex offender registry after ten years. See § 589.401.4(1). Because the Highway Patrol does not otherwise dispute that Dixon met the conditions for removal from the registry, we affirm the circuit court’s judgment.

Factual Background

In July 2003, Dixon told a fifteen-year-old girl over the telephone that she sounded and looked sexy, and asked her about her sexual activity. Dixon was forty-seven years old at the time. He was charged in the Circuit Court of Andrew County with sexual misconduct in the third degree, a class C misdemeanor, in violation of § 566.095, RSMo 2000. Dixon pleaded guilty in November 2003. The circuit court suspended imposition of sentence and placed Dixon on probation for 2 years. He was successfully discharged from probation in November 2005. Due to his conviction,² Dixon was required to register as a sexual offender. He has continuously registered since his guilty plea in 2003.

On August 28, 2018, Dixon filed a petition in the Circuit Court of Andrew County pursuant to § 589.401, seeking to have his name removed from the sex offender registry. After holding an evidentiary hearing, the circuit court granted Dixon’s petition. The court concluded that Dixon’s conviction made him a "tier I" offender, and that he was accordingly entitled to petition for removal from the registry because more than ten years had elapsed since he was first required to register. The court noted that "[t]he Prosecuting Attorney of Andrew County ... has no objection to the relief requested by [Dixon]; and the victim in this matter, having previously been contacted by the prosecuting attorney, has no objection to [Dixon]’s name being removed from the sexual offender registry." The circuit court’s judgment found that Dixon: had successfully completed his probation for the underlying offense; had fully complied with his registration obligations; was "not a current or potential threat to public safety"; and had "in all respects complied with the requirements of Section 589.401" to be removed from the sex offender registry. Accordingly, the court ordered that Dixon’s name be removed from the sex offender registry, and declared "that he has no further requirements to register thereunder."

The Highway Patrol appeals.

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 declares or applies the law." Petrovick v. State , 537 S.W.3d 388, 390 (Mo. App. W.D. 2018) (citations and internal quotation marks omitted).

"Questions of statutory interpretation are reviewed de novo." Id. (citation and internal quotation marks omitted). "Any time a court is called upon to apply a statute, the primary obligation is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words in their plain and ordinary meaning."

State ex rel. Hillman v. Beger , 566 S.W.3d 600, 604–05 (Mo. 2019) (citation and internal quotation marks omitted). "This Court interprets statutes in a way that is not hypertechnical but instead is reasonable and logical and gives meaning to the statute and the legislature's intent as reflected in the plain language of the statute at issue." IBM Corp. v. Dir. of Revenue , 491 S.W.3d 535, 538 (Mo. 2016) (citation omitted).³

Analysis

The Highway Patrol argues that the circuit court erred in removing Dixon’s name from the sex offender registry, because the offense of which he was convicted rendered him a "tier III" offender, meaning that he was required to register as a sex offender for the rest of his life.

Deciding this appeal requires that we review the history of the offense of which Dixon was convicted, and the history of the sex offender registration statutes.

A.

Dixon pleaded guilty in 2003 to an offense which was then called "sexual misconduct in the third degree." At the time of his guilty plea, § 566.095, RSMo 2000, provided:

1. A person commits the crime of sexual misconduct in the third degree if he solicits or requests another person to engage in sexual conduct under circumstances in which he knows that his requests or solicitation is likely to cause affront or alarm.

2. Sexual misconduct in the third degree is a class C misdemeanor.

At the time, "[t]he authorized term[ ] of imprisonment" for a class C misdemeanor was "a term not to exceed fifteen days." § 558.011, RSMo Cum. Supp. 2003.

In 2013, the General Assembly amended the sexual misconduct statutes. See H.B. 215, 97th Gen. Assembly, 1st Reg. Sess. (2013). Section 566.090, RSMo 2000, which defined the offense of sexual misconduct in the first degree, was repealed. The offense was "transferred to section 566.101 and renamed second-degree sexual abuse." State v. Ward , 485 S.W.3d 380, 380 n.1 (Mo. App. E.D. 2016).⁴

As a result of the repeal of § 566.090, and the elimination of what had been the first-degree offense, the remaining sexual misconduct offenses were renamed without substantive modification. Thus, the offense of sexual misconduct in the second degree, defined in § 566.093, was renamed "sexual misconduct in the first degree." At the same time, sexual misconduct in the third degree – the offense of which Dixon had been convicted – was renamed "sexual misconduct in the second degree." See § 566.095. Although the name of Dixon’s offense was altered, the 2013 amendment did not change: (1) the elements of the offense; (2) the classification of the offense as a class C misdemeanor; or (3) the punishment for the offense. With the additions indicated by underline and the deletions by strikeout, the 2013 amendment of § 566.095 made the following non-substantive changes to the statute:

1. A person commits the crime offense of sexual misconduct in the third second degree if he or she solicits or requests another person to engage in sexual conduct under circumstances in which he or she knows that his requestssuch request or solicitation is likely to cause affront or alarm.

2. The offense of sexual misconduct in the thirdsecond degree is a class C misdemeanor.

The maximum authorized punishment for the offense remained what it was previously: "a term not to exceed fifteen days." § 558.011.1(8). Section 566.095 has not been amended since 2013.

B.

Missouri’s Sex Offender Registration Act ("SORA"), § 589.400 et seq., became effective on January 1, 1995. The statute

imposes registration and notification requirements on persons committing crimes listed in chapter 566, certain other sexual crimes, and certain crimes that are not inherently sexual in nature but the legislature believes to be associated with a risk of sexual offenses against minors, such as child kidnapping.

Petrovick , 537 S.W.3d at 390 (quoting Doe v. Phillips , 194 S.W.3d 833, 839 (Mo. 2006) ).

When originally enacted, "the registration requirements imposed by Missouri’s sex-offender registration statute ‘[were] lifetime registration requirements,’ " with limited exceptions. Wilkerson v. State , 533 S.W.3d 755, 758 (Mo. App. W.D. 2017) (quoting § 589.400.3, RSMo 2016 ). In 2018, the General Assembly amended SORA. The 2018 amendments for the first time divided sexual offenders into three "tiers," based on the severity of the offenses of which they were convicted.⁵ The 2018 amendments specified that only offenders in the highest tier – tier III – would be subject to a lifetime registration obligation.

Tier I, the least severe category, consists of offenders convicted of fifteen listed offenses, including "[s]exual misconduct in the second degree under section 566.095." § 589.414.5(1)(m). Although tier I sexual offenders are required to register for fifteen years, § 589.400.4, such an offender may file a petition "to have his or her name removed from the sexual offender registry" after ten years, if the offender meets certain criteria. § 589.401.4(1). If the circuit court finds that the petitioner meets the statutory criteria, the court will enter "judgment directing the removal of the name" of the offender from the registry, and such person "is not required to register under" SORA for that offense. §§ 589.401.16, .17.

Tier II consists of persons convicted of thirteen listed offenses. § 589.414.6. Tier II offenders are required to register for twenty-five years. § 589.400.4.

Tier III, the most severe category, consists of persons convicted of thirty-six listed offenses. § 589.414.7. In addition, the statute includes a "catch-all" provision, which specifies that tier III includes "[a]ny offender who is adjudicated in Missouri for any offense of a sexual nature requiring registration under [SORA] that is not classified as a tier I or tier II offense in this section." § 589.414.7(5). A tier III sexual offender must register...