Carr v. Mo. Attorney Gen. Office, WD 80727

CourtCourt of Appeal of Missouri (US)
Writing for the CourtAnthony Rex Gabbert, Presiding Judge
Citation560 S.W.3d 61
Decision Date18 September 2018
Docket NumberWD 80727
Parties Derrick Maurice CARR, Appellant, v. MISSOURI ATTORNEY GENERAL OFFICE, Respondent.

560 S.W.3d 61

Derrick Maurice CARR, Appellant,
v.
MISSOURI ATTORNEY GENERAL OFFICE, Respondent.

WD 80727

Missouri Court of Appeals, Western District.

OPINION FILED: September 18, 2018


David Kelly, Lee's Summit, MO, Counsel for Appellant.

Aaron Maness, Jefferson City, MO, Counsel for Respondent.

Before Division Three: Anthony Rex Gabbert, Presiding Judge, Victor C. Howard, Judge, and Alok Ahuja, Judge

Anthony Rex Gabbert, Presiding Judge

560 S.W.3d 63

Derrick Carr appeals a circuit court’s grant of a motion to dismiss his Petition for Removal from the Missouri Sex Offender Registry. He raises two points on appeal. First, he argues the circuit court erred in determining Carr is a tier III sex offender under the federal Sex Offender Registration and Notification Act and thus ineligible for removal from the Missouri Sex Offender Registry. Second, Carr argues that the court erred in concluding Carr was ever required to register under the Sex Offender Registration and Notification Act and that he is otherwise eligible for removal under Missouri’s Sex Offender Registration Act. We reverse.

Background

In 1979, Carr engaged in sexual intercourse with a fourteen-year-old when Carr was seventeen. On July 29, 1980, Carr pleaded guilty to sexual assault, defined in relevant part as "sexual intercourse with another person ... who is fourteen or fifteen years old." Section 566.040, RSMo 1979; State v. Buck , 724 S.W.2d 574 (Mo. App. 1986).

On July 29, 2016, Carr filed a Petition for Removal from the Missouri Sex Offender Registry ("Registry"), pursuant to Missouri’s Sex Offender Registration Act ("SORA"), Section 589.400 et seq.1 On August 20, 2016, the State filed a motion to dismiss, arguing 1) Carr was ineligible for removal under Section 589.400.8, because physical force was used in Carr’s offense, and 2) Carr’s required registration under the federal Sex Offender Registration and Notification Act ("SORNA"), 34 U.S.C. § 20911 et seq. , triggered lifetime registration pursuant to Section 589.400.1(7) and Doe v. Toelke , 389 S.W.3d 165 (Mo. banc 2012).

In his reply to the motion to dismiss, Carr "does not dispute that he has been required to register under federal law pursuant to SORNA." However, Carr argues he should be classified as no more than a tier II offender and thus eligible for removal from the Registry, because the use or threat of force was not an element of the crime to which he pleaded.

The circuit court held a hearing on February 23, 2017, and granted the motion to dismiss on February 28, 2017, concluding: 1) Carr’s offense involved the use or threat of physical force, thus requiring lifetime registration as a tier III sex offender under SORNA, and 2) Carr’s required registration under SORNA triggered lifetime registration under SORA. Section 589.400.1(7). This appeal follows.

Standard of Review

The judgment of the circuit court will be upheld on appeal, unless " ‘it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law.’ " Wilkerson v. State, 533 S.W.3d 755, 757 (Mo. App. 2017) (internal citations omitted). "Statutory interpretation is an issue of law that this Court reviews de novo. "

560 S.W.3d 64

Finnegan v. Old Republic Title Co. of St. Louis, Inc. , 246 S.W.3d 928, 930 (Mo. banc 2008).

Sex Offender Registration and Notification Act

Before addressing the merits of Carr’s appeal, it is instructive to review SORNA’s general purpose and its tiering system for sex offenders. SORNA was enacted in 2006, as part of the Adam Walsh Child Protection and Safety Act, Pub.L. 109–248, Tit. I, 120 Stat. 590. James v. Missouri State Highway Patrol , 505 S.W.3d 378, 381 (Mo. App. 2016) (citing Doe v. Keathley , 344 S.W.3d 759, 762 (Mo. App. W.D. 2011) ). As our Eastern District has explained:

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), which provides that ‘[t]he term "sex offender" means an individual who was convicted of a sex offense.’ A sex offense is defined as ‘a criminal offense that has an element involving a sexual act or 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 involving 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).

James, 505 S.W.3d at 381 (footnote omitted).

Additionally, SORNA divides sex offenders into three tiers. Id. Tier I, the least severe category, refers to "a sex offender other than a tier II or tier III sex offender." 34 U.S.C. § 20911(2). The full registration period for a tier I sex offender is fifteen years. 34 U.S.C. § 20915(a)(1). Tier II includes actors who have engaged in "abusive sexual contact" with a minor. 34 U.S.C § 20911(3)(A)(iv). When conducted knowingly, any sexual contact with a minor is sexually abusive. 18 U.S.C. § 2243(a)(1)-(2).2 The full registration period for a tier II sex offender is twenty-five years. 34 U.S.C. § 20915(a)(2). Tier III includes actors who have engaged in sexual acts "comparable to or more severe than ... aggravated sexual abuse." 34 U.S.C. § 20911(4)(A)(i). "Aggravated sexual abuse" includes conduct in which the actor "knowingly causes another person to engage in a sexual act by using force against that person." 18 U.S.C. § 2241(a)(1). The full registration period for tier III is for "the life of the offender." 34 U.S.C. § 20915(a)(3).

Analysis

I.

Carr first argues the circuit court erred in determining Carr is a tier III sex offender under SORNA and thus ineligible for removal from Missouri’s Registry, because the court’s determination was based on facts underlying Carr’s state conviction, rather than based solely...

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3 practice notes
  • MacColl v. Mo. State Highway Patrol & Boone Cnty., WD84739
    • United States
    • Court of Appeal of Missouri (US)
    • May 3, 2022
    ...to run when the circuit court issued its judgment accepting his guilty plea and placing him on probation.); Carr v. Mo. Att'y Gen. Off., 560 S.W.3d 61, 66 (Mo. App. W.D. 2018) (The registration period began to run when the court accepted Carr's guilty plea.). In MacColl's case, the 15-year ......
  • Doe v. Belmar, No. ED 106264
    • United States
    • Court of Appeal of Missouri (US)
    • December 26, 2018
    ...Id. at 759 (internal quotation marks omitted).4 Following Wilkerson , the Western District in Carr v. Missouri Attorney General Office , 560 S.W.3d 61, 65 (Mo. App. W.D. 2018), again noted that a circumstance-specific (or non-categorical) approach is applied "to determine whether an individ......
  • Goodwater v. State, WD 80756
    • United States
    • Court of Appeal of Missouri (US)
    • September 18, 2018
    ...not to do so. Trial counsel testified that not objecting during closing argument was one of his trial strategies as to avoid irritating 560 S.W.3d 61the jury with his objections, which is generally viewed as a reasonable trial strategy. See State v. Tokar , 918 S.W.2d 753, 768 (Mo. banc 199......
3 cases
  • MacColl v. Mo. State Highway Patrol & Boone Cnty., WD84739
    • United States
    • Court of Appeal of Missouri (US)
    • May 3, 2022
    ...to run when the circuit court issued its judgment accepting his guilty plea and placing him on probation.); Carr v. Mo. Att'y Gen. Off., 560 S.W.3d 61, 66 (Mo. App. W.D. 2018) (The registration period began to run when the court accepted Carr's guilty plea.). In MacColl's case, the 15-year ......
  • Doe v. Belmar, No. ED 106264
    • United States
    • Court of Appeal of Missouri (US)
    • December 26, 2018
    ...Id. at 759 (internal quotation marks omitted).4 Following Wilkerson , the Western District in Carr v. Missouri Attorney General Office , 560 S.W.3d 61, 65 (Mo. App. W.D. 2018), again noted that a circumstance-specific (or non-categorical) approach is applied "to determine whether an individ......
  • Goodwater v. State, WD 80756
    • United States
    • Court of Appeal of Missouri (US)
    • September 18, 2018
    ...not to do so. Trial counsel testified that not objecting during closing argument was one of his trial strategies as to avoid irritating 560 S.W.3d 61the jury with his objections, which is generally viewed as a reasonable trial strategy. See State v. Tokar , 918 S.W.2d 753, 768 (Mo. banc 199......

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