524 S.W.3d 505 (Mo. 2017), SC95481, State v. Johnson

Docket Nº:SC95481
Citation:524 S.W.3d 505
Opinion Judge:Zel M. Fischer, Judge
Party Name:STATE OF MISSOURI, Respondent, v. ANGELO JOHNSON, Appellant
Attorney:Johnson was represented by Samuel Buffaloe of the public defender's office in Columbia. The state was represented by Karen L. Kramer of the attorney general's office in Jefferson City.
Judge Panel:Zel M. Fischer, Chief Justice. Wilson, Russell, and Powell, JJ., concur; Breckenridge, J., concurs in separate opinion filed; Stith, J., dissents in separate opinion filed; Draper, J., concurs in opinion of Stith, J. Wilson, Russell, and Powell, JJ., concur; Breckenridge, J., concurs in separate ...
Case Date:August 22, 2017
Court:Supreme Court of Missouri
SUMMARY

The Supreme Court affirmed the sentences imposed upon Defendant after the circuit court convicted him of thirteen counts stemming from the sexual abuse of his two step-daughters and his biological daughter. At sentencing, the State requested that the circuit court find Defendant to be a predatory sexual offender. The circuit court found Defendant was be a predatory sexual offender and sentenced... (see full summary)

 
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Page 505

524 S.W.3d 505 (Mo. 2017)

STATE OF MISSOURI, Respondent,

v.

ANGELO JOHNSON, Appellant

No. SC95481

Supreme Court of Missouri, En Banc

August 22, 2017

Page 506

[Copyrighted Material Omitted]

Page 507

APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY. The Honorable Thomas J. Prebil, Judge.

State v. Johnson, (Mo.Ct.App., Nov. 24, 2015)

Johnson was represented by Samuel Buffaloe of the public defender's office in Columbia.

The state was represented by Karen L. Kramer of the attorney general's office in Jefferson City.

Zel M. Fischer, Chief Justice. Wilson, Russell, and Powell, JJ., concur; Breckenridge, J., concurs in separate opinion filed; Stith, J., dissents in separate opinion filed; Draper, J., concurs in opinion of Stith, J.

OPINION

Page 508

Zel M. Fischer, Judge

A jury convicted Angelo Johnson of five counts of first-degree statutory sodomy, three counts of first-degree statutory rape, three counts of incest, and one count of second-degree statutory rape. At sentencing, the circuit court found Johnson to be a predatory sexual offender pursuant to § 558.018.5(3)1 and sentenced Johnson to the corresponding mandatory minimum sentence, life imprisonment with the possibility of parole, for each of the five first-degree statutory sodomy convictions and three first-degree statutory rape convictions. Johnson appeals these eight sentences, arguing the circuit court improperly sentenced him as a predatory sexual offender. The circuit court's judgment is affirmed.

Factual

and Procedural History

The State charged Johnson with 13 felony counts stemming from the sexual abuse of his two step-daughters, D.P. and R.J., and his biological daughter, L.J. The specific charges were: six counts of first-degree statutory sodomy and three counts of first-degree statutory rape as to D.P. and R.J.; three counts of incest as to D.P., R.J., and L.J.; and one count of second-degree statutory rape as to L.J. For the first-degree statutory sodomy charges and first-degree statutory rape charges (which involved only D.P. and R.J.[2]), the State also charged Johnson as a predatory sexual offender pursuant to § 558.018, section 558.018 defines " predatory sexual offender" and subjects a defendant, found by the circuit court to be a predatory sexual offender and also found guilty of a predicate offense, to a mandatory minimum sentence of life imprisonment with the possibility of parole. Prior to trial, Johnson waived his statutory right to jury sentencing.

Page 509

After the close of evidence and prior to submission of the case to the jury, the circuit court, outside of the jury's presence, initially considered the State's request to find Johnson to be a predatory sexual offender. The charges against Johnson involved multiple victims. The State argued Johnson was a predatory sexual offender pursuant to § 558.018.5(3), which provides a person is a predatory sexual offender if the person " [h]as committed an act or acts against more than one victim." Johnson argued § 558.018.5(3) did not apply because that section applies only to prior acts, not acts that are the bases for the current charges. The circuit court initially agreed with Johnson and denied the State's request to find Johnson to be a predatory sexual offender.

The case was submitted to the jury, which found Johnson guilty on 12 of 13 counts and acquitted him on one count of first-degree statutory sodomy. At sentencing, the State again requested the circuit court find Johnson to be a predatory sexual offender pursuant to § 558.018.5(3). Johnson again argued that section did not apply to him because it applies only to prior acts. Johnson did not, however, argue the circuit court was precluded by § 558.021.2 from finding him to be a predatory sexual offender because the case had already been submitted to the jury. The circuit court reconsidered its prior interpretation of § 558.018.5(3), was persuaded the State's interpretation of the statute was correct, and, therefore, found Johnson to be a predatory sexual offender. 3 Based on that finding, Johnson was sentenced to eight concurrent terms of life imprisonment with eligibility for parole after 25 years for his first-degree statutory sodomy and first-degree statutory rape convictions.4 Johnson appealed the sentences. After OPINION of appeals, this Court transferred the case pursuant to article V, § 10 of the Missouri Constitution.

Analysis

A " predatory sexual offender" is statutorily defined as a person who: (1) Has previously been found guilty of committing or attempting to commit any of the offenses listed in subsection 1 of this section, or committing child molestation in the first degree when classified as a class B felony or sexual abuse when classified as a class B felony; or

(2) Has previously committed an act which would constitute an offense listed in subsection 4 of this section, whether or not the act resulted in a conviction; or

(3) Has committed an act or acts against more than one victim which would constitute an offense or offenses listed in subsection 4 of this section, whether or not the defendant was charged with an additional offense or offenses as a result of such act or acts.

Section 558.018.5. " In a jury trial, the facts shall be pleaded, established and found prior to submission to the jury outside of its hearing . . . ." Section 558.021.2. If the circuit court finds the defendant is a predatory sexual offender and the defendant is found guilty of committing or attempting to commit one of several predicate crimes, then the defendant is subject to a mandatory

Page 510

minimum sentence of life imprisonment with the possibility of parole. Sections 558.018.4, 558.018.6.

Relevant here, the predicate crimes include first-degree statutory sodomy and first-degree statutory rape. Sections 558.018.1, 558.018.4. Because the jury found Johnson guilty on five counts of first-degree statutory sodomy and three counts of first-degree statutory rape, and because the circuit court found Johnson to be a predatory sexual offender pursuant to § 558.018.5(3), the circuit court sentenced Johnson to life imprisonment with eligibility for parole on each of those eight convictions. Had the circuit court not found Johnson to be a predatory sexual offender, the circuit court could have still sentenced Johnson to life imprisonment for each of the eight convictions, but Johnson would have been subject to a lesser mandatory minimum sentence of either 5 years or 10 years, depending on the conviction.[5] Johnson presents two points on appeal and asks this Court to remand his case for resentencing on the eight convictions without the possibility of sentencing him as a predatory sexual offender.

Section 558.018.5(3) Applies to Charged Acts and Is Not Facially Unconstitutional

Johnson argues the circuit court erred in finding him to be a predatory sexual offender pursuant to § 558.018.5(3), alleging that section applies only to prior acts, not acts that are the bases for the current charges. As an extension of this argument, Johnson argues interpreting § 558.018.5(3) to apply to charged acts violates his right to a jury trial guaranteed by the Sixth and Fourteenth amendments to the United States Constitution and article I, § 18(a) of the Missouri Constitution.6 " Statutory interpretation is an issue of law that this Court reviews de novo." S. Metro. Fire Prot. Dist. v. City of Lee's Summit, 278 S.W.3d 659, 666 (Mo. banc 2009).

Generally, to preserve an allegation of error, it must be presented to the circuit court in a motion for new trial. E.g., State v. Winfield, 5 S.W.3d 505, 511 (Mo. banc 1999); Rule 29.11(d). Here, however, the claim of error relates to the circuit court applying § 558.018.5(3) to Johnson, which he raised at the first opportunity and again at sentencing; therefore, this claim of error is preserved.

" This Court's primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute at issue." Parktown Imps., Inc. v. Audi of Am., Inc., 278 S.W.3d 670, 672 (Mo. banc 2009). " It is a basic rule of statutory construction that words should be given their plain and ordinary meaning whenever possible." State ex rel. Jackson v. Dolan,

Page 511

398 S.W.3d 472, 479 (Mo. banc 2013) (internal quotations omitted). This Court may not add language to an unambiguous statute. State v. Collins, 328 S.W.3d 705, 709 n.6 (Mo. banc 2011). " This Court must presume every word, sentence or clause in a statute has effect, and the legislature did not insert superfluous language." Bateman v. Rinehart, 391 S.W.3d 441, 446 (Mo. banc 2013). " When the words are clear, there is nothing to construe beyond applying the plain meaning of the law." Id. (internal quotations omitted); see also...

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