Doe v. Belmar, No. ED 106264

CourtCourt of Appeal of Missouri (US)
Writing for the CourtROBERT G. DOWD, JR., Judge
Citation564 S.W.3d 415
Parties John DOE, Appellant, v. Colonel Jon BELMAR and Missouri State Highway Patrol, Respondents.
Decision Date26 December 2018
Docket NumberNo. ED 106264

564 S.W.3d 415

John DOE, Appellant,
v.
Colonel Jon BELMAR and Missouri State Highway Patrol, Respondents.

No. ED 106264

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: December 26, 2018


ATTORNEYS FOR APPELLANT: Matthew A. Radefield, 7710 Carondelet Avenue, Suite 350, Clayton., MO 63105.

ATTORNEYS FOR RESPONDENT: Lorena V. Von Kaenel, 41 S. Central Avenue, 9th Floor, Clayton, MO 63105, Gregory M. Goodwin, P. O. Box 899, Jefferson City, MO 65102.

ROBERT G. DOWD, JR., Judge

John Doe ("Petitioner") appeals from the judgment of the trial court denying his petition for declaratory judgment against Colonel John Belmar, St. Louis County Chief of Police, and Colonel Ronald Replogle, Superintendent of the Missouri State Highway Patrol (collectively, "Respondents") seeking Petitioner’s removal from the sex offender registry and destruction of records referencing him contained in the sex offender registry. We affirm.

Petitioner was charged in 1997 with misdemeanor second-degree sexual abuse for subjecting the victim, who was twelve or thirteen, to sexual contact. Petitioner eventually pled guilty to an amended charge of attempted endangering the welfare of a child in the first degree. Specifically, the charging information indicated that Petitioner "attempted to act in a manner that created a substantial risk to the body and health of [the victim], a child less than 17 years old, by having her disrobe in front of him, and such conduct was a substantial step toward the commission of the crime of endangering the welfare of a child and was done for the purpose of preventing [sic]1 the commission of the crime of endangering the welfare of a child in the first-degree." The plea court suspended imposition of the sentence and placed Petitioner on probation for two years. He was not required to register as a sex offender. Then, in December 2014, Petitioner was informed by the St. Louis County Police Department that he was required to register. He complied and filed his petition for declaratory judgment.

After a bench trial during which the trial court heard testimony from both Petitioner and the victim, the trial court found that Petitioner was not entitled to removal from the sex offender registry. The trial court concluded that it was required to employ a non-categorical approach and that thereunder, Petitioner must register given the nature of his offense. This appeal follows.

564 S.W.3d 417

For his sole point on appeal, Petitioner claims that the trial court erred in applying a non-categorical, also known as circumstance-specific approach, rather than a categorical approach when determining whether or not Petitioner had an obligation to register as a sex offender. He argues that the non-categorical approach improperly looks beyond the statutory definitions of offenses, is at odds with the language of the federal Sex Offender Registration and Notification Act ("SORNA"), is disruptive to plea bargaining and violates Petitioner’s rights under the Fifth and Sixth Amendments to the U.S. Constitution. Petitioner contends the use of the word "convicted" in the relevant section of SORNA rather than a phrase such as "has committed," the importance of honoring the plea bargain process and Fifth Amendment and Sixth Amendment concerns mandate a categorical approach.2 None of these considerations as presented by Petitioner in this case convince us to abandon the clear precedent established by this Court and the Western District requiring the use of the non-categorical approach. See Doe v. Isom , 429 S.W.3d 436 (Mo. App. E.D. 2014) ; Wilkerson v. State , 533 S.W.3d 755 (Mo. App. W.D. 2017). Finding no error in the trial court’s use of the non-categorical approach, we affirm.

We will uphold the judgment of the trial court "unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law." Isom , 429 S.W.3d at 439 (citing Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976) ). Issues of statutory construction are questions of law which we review de novo, giving no deference to the trial court’s conclusions. Id.

Sex offenders may be required to register in Missouri under SORNA or under Missouri law, the Sex Offender Registration Act ("SORA"). 34 U.S.C. §§ 20901 et. seq and RSMo. §§ 589.400 et. seq. According to the Missouri Supreme Court, "SORNA imposes an independent, federally mandated registration requirement," and the SORA registration requirements apply, among others, "to any person who ‘has been’ required to register as a sex offender pursuant to federal law." Doe v. Toelke , 389 S.W.3d 165, 167 (Mo. banc 2012) ; see Section 589.400.1(7). Because of this interplay between federal and state law, if Petitioner has been required to register under SORNA, he has a separate duty to register under SORA. See Toelke , 389 S.W.3d at 167.

SORNA requires a "sex offender" to "register, and keep the registration current, in each jurisdiction where the offender resides." 34 U.S.C. § 20913(a) ; Wilkerson , 533 S.W.3d at 758. A "sex offender" is defined as "an individual who was convicted of a sex offense."3

564 S.W.3d 418

34 U.S.C. § 20911(1) ; Wilkerson , 533 S.W.3d at 758. A "sex offense" under SORNA, and as applied here, includes "a criminal offense that is a specified offense against a minor." 34 U.S.C. § 20911(5)(A)(ii) ; Wilkerson , 533 S.W.3d at 758. SORNA’s definition of a "specified offense against a minor" includes a catchall provision: "[a]ny conduct that by its nature is a sex offense against a minor." 34 U.S.C. § 20911(7)(I) ; Wilkerson , 533 S.W.3d at 758.

Similar to the present case, in Doe v. Isom , this Court reviewed the trial court’s decision on a petition for declaratory judgment seeking to remove the petitioner’s name from state and federal sex offender registries after the petitioner pled guilty to endangering the welfare of a child. Isom , 429 S.W.3d at 437. We noted that while this particular crime "is not in and of itself a sexual offense" in that it can include "non-sex" acts, it "can relate to sexual offenses." Id. at 441 (emphasis in original). The petitioner in Isom asserted that he was not required to register as a sex offender because he was not charged with nor pled guilty to committing a "sex offense" in that no element of the offense required conduct involving a sexual act. Id. at 442. We were faced with the question of whether a "sex offense" for purposes of registration under SORNA required a court to look solely to the statutory definition and elements of the underlying offense—a categorical approach—or to the underlying conduct and facts of the offense—a non-categorical or circumstance-specific approach. Id.

We ultimately elected to follow the non-categorical approach. Id. at 443. We looked...

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4 practice notes
  • Dixon v. Mo. State Highway Patrol, WD 82346
    • United States
    • Court of Appeal of Missouri (US)
    • September 24, 2019
    ...offender required to register under federal law is likewise required to register under Missouri law. See , e.g. , Doe v. Belmar , 564 S.W.3d 415, 417 n.3 (Mo. App. E.D. 2018).3 Abrogated on other grounds by § 144.030.2(5), RSMo Cum. Supp. 2018.4 In 2006, the General Assembly removed the lan......
  • Doe v. Frisz, SC 99310
    • United States
    • United States State Supreme Court of Missouri
    • April 26, 2022
    ...plea to the underlying facts of the offense to determine whether the petitioner's offense qualifie[s] as a sex offense." Doe v. Belmar , 564 S.W.3d 415, 418 (Mo. App. 2018) (quotation marks omitted). A categorical approach, on the other hand, would permit courts to "look only to the fact of......
  • State v. Shepherd, SD 36741
    • United States
    • Court of Appeal of Missouri (US)
    • August 26, 2021
    ...All references to statutes are to RSMo Noncum. Supp. 2014, effective January 1, 2017, unless otherwise indicated.7 Cf. Doe v. Belmar , 564 S.W.3d 415, 420 (Mo. App. E.D. 2018) (rejecting appellant's Fifth and Sixth Amendment claims in light of our Supreme Court's determination "that the sex......
  • J.B. v. Vescovo, WD 84010
    • United States
    • Court of Appeal of Missouri (US)
    • August 31, 2021
    ...offense and denied his request to be removed from said registry.1 The trial court's determination was affirmed in Doe v. Belmar , 564 S.W.3d 415 (Mo. App. E.D. 2018).Missouri's Sex Offender Registration Act ("SORA"), section 589.400 et seq., effective January 1, 1995, originally imposed lif......
3 cases
  • Dixon v. Mo. State Highway Patrol, WD 82346
    • United States
    • Court of Appeal of Missouri (US)
    • September 24, 2019
    ...offender required to register under federal law is likewise required to register under Missouri law. See , e.g. , Doe v. Belmar , 564 S.W.3d 415, 417 n.3 (Mo. App. E.D. 2018).3 Abrogated on other grounds by § 144.030.2(5), RSMo Cum. Supp. 2018.4 In 2006, the General Assembly removed the lan......
  • State v. Shepherd, No. SD 36741
    • United States
    • Court of Appeal of Missouri (US)
    • August 26, 2021
    ...All references to statutes are to RSMo Noncum. Supp. 2014, effective January 1, 2017, unless otherwise indicated.7 Cf. Doe v. Belmar , 564 S.W.3d 415, 420 (Mo. App. E.D. 2018) (rejecting appellant's Fifth and Sixth Amendment claims in light of our Supreme Court's determination "that the sex......
  • J.B. v. Vescovo, WD 84010
    • United States
    • Court of Appeal of Missouri (US)
    • August 31, 2021
    ...offense and denied his request to be removed from said registry.1 The trial court's determination was affirmed in Doe v. Belmar , 564 S.W.3d 415 (Mo. App. E.D. 2018).Missouri's Sex Offender Registration Act ("SORA"), section 589.400 et seq., effective January 1, 1995, originally imposed lif......

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