J.B. v. Vescovo, WD 84010

CourtCourt of Appeal of Missouri (US)
Writing for the CourtW. DOUGLAS THOMSON, JUDGE
Citation632 S.W.3d 861
Docket NumberWD 84010
Decision Date31 August 2021
Parties J.B., Appellant, v. Paul C. VESCOVO, III, et al., Respondents.

632 S.W.3d 861

J.B., Appellant,
v.
Paul C. VESCOVO, III, et al., Respondents.

WD 84010

Missouri Court of Appeals, Western District.

Opinion filed: August 31, 2021


Matthew A. Radefeld, St. Louis, for Appellant.

Gregory M. Goodwin, Jefferson City, for Respondent Colonel Eric T. Olsen (MSPH) and Intervenor-Respondent Missouri Attorney General.

Paul Vescovo, III, Respondent Acting Pro-se.

Division Three: Edward R. Ardini, Jr., Presiding Judge, Mark D. Pfeiffer, Judge and W. Douglas Thomson, Judge

W. DOUGLAS THOMSON, JUDGE

632 S.W.3d 863

J.B. appeals the trial court's judgment denying his petition for removal from the Missouri sex offender registry. On appeal, J.B. contends the trial court erred in determining J.B. was adjudicated for a tier III sexual offense because he pled guilty to a non-registerable, class A misdemeanor offense in 1997, and designating him as a tier III offender would lead to an illogical result and a contradiction of the legislative intent behind the removal process. We affirm.

Factual and Procedural History

In 1997, J.B. was charged with sexual abuse in the second degree alleging that he subjected the alleged victim, to whom he was not married and who was less than twelve to thirteen, to sexual contact. J.B. pled guilty to the amended misdemeanor charge of attempted endangering the welfare of a child in the first degree pursuant to a plea agreement and received a suspended imposition of sentence with a probation term of two years. Although not initially required to register with the sex offender registry, due to a statutory change he was later required to do so. In 2014, J.B. learned of the statutory change requiring him to register and did so. Shortly thereafter, J.B. filed a petition for declaratory judgment seeking his removal from the sex offender registry. After a bench trial, the trial court determined that J.B. pled guilty to a registerable 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 lifetime registration requirements for qualifying offenses with limited exceptions. Dixon v. Missouri State Highway Patrol , 583 S.W.3d 521, 525 (Mo. App. W.D. 2019). In 2018, the General Assembly amended SORA and "for the first time divided sexual offenders into three ‘tiers,’ based on the severity of the offenses of which they were convicted." Id. ; section 589.414.2 "The 2018 amendments specified that only offenders in the highest tier—tier III—would be

632 S.W.3d 864

subject to a lifetime registration obligation." Id. Sexual offenders in tiers I and II are eligible to petition for removal from the registry after fifteen and twenty-five years, respectively. Section 589.400.4. Section 589.414.7(2)(d) provides that a person adjudicated for the crime of endangering the welfare of a child in the first degree under section 568.045, if the offense is sexual in nature,3 is a tier III offender, requiring registration for life.

On January 14, 2020, J.B. filed his petition for removal from the Missouri sex offender registry ("Petition") pursuant to section 589.401 alleging his designation as a tier III offender is incorrect because (1) the original charged offense of felony sexual abuse in the second degree, is classified as a tier I offense, and (2) he pled guilty to a misdemeanor offense of attempted endangering the welfare of a child in the first degree and the tier III classification contains no other misdemeanor offenses. J.B. asserted his proper tier classification is tier I because his original charge is listed as such, and the charge to which he pled guilty is a misdemeanor.

After an evidentiary hearing, the trial court entered its judgment ("Judgment") denying the Petition and made the following findings of fact and conclusions of law:

1. On March 27, 1997, in the Circuit Court of Clay County, Missouri, [J.B.] was adjudicated for the criminal offense of attempted endangering the welfare of a child in the first degree pursuant to section 568.045 ... in that [J.B.] attempted to act in a manner that created a substantial risk to the body and health of [Victim] ‘by having her disrobe in front of [J.B.]’

2. Section 589.414 ... provides, ‘Tier III sexual offenders include ... [a]ny offender who has been adjudicated for the crime of ... [e]ndangering the welfare of a child in the first degree under section 568.045 if the offense is sexual in nature[.]’ Section 589.414.7(2)(d), RSMo Supp 2018.

3. Section 589.40[4]4 ... provides:

As used in section 589.400 and 589.425, the following terms mean: ‘Adjudicated’ or ‘adjudication’ ... a finding of guilt, plea of guilt ... to committing, attempting
...

To continue reading

Request your trial
2 practice notes
  • Smith v. St. Louis Cnty. Police, ED109734
    • United States
    • Court of Appeal of Missouri (US)
    • June 7, 2022
    ...would be subject to a lifetime registration obligation." Dixon, 583 S.W.3d at 525; accord Hixson, 611 S.W.3d at 925-26; J.B. v. Vescovo, 632 S.W.3d 861, 863-64 (Mo. App. W.D. 2021). Missouri courts have expressly recognized that the 2018 Amendments "align" MO-SORA more closely with the thre......
  • State v. Burkhalter, WD 82489
    • United States
    • Court of Appeal of Missouri (US)
    • August 31, 2021
    ...only of the lesser-included offense of first-degree child molestation.[3 ] The movant cannot cite any evidence that an essential element 632 S.W.3d 861 of first-degree statutory sodomy was lacking, which would serve as a basis for acquittal of the greater offense and conviction of the lesse......
2 cases
  • Smith v. St. Louis Cnty. Police, ED109734
    • United States
    • Court of Appeal of Missouri (US)
    • June 7, 2022
    ...would be subject to a lifetime registration obligation." Dixon, 583 S.W.3d at 525; accord Hixson, 611 S.W.3d at 925-26; J.B. v. Vescovo, 632 S.W.3d 861, 863-64 (Mo. App. W.D. 2021). Missouri courts have expressly recognized that the 2018 Amendments "align" MO-SORA more closely with the thre......
  • State v. Burkhalter, WD 82489
    • United States
    • Court of Appeal of Missouri (US)
    • August 31, 2021
    ...only of the lesser-included offense of first-degree child molestation.[3 ] The movant cannot cite any evidence that an essential element 632 S.W.3d 861 of first-degree statutory sodomy was lacking, which would serve as a basis for acquittal of the greater offense and conviction of the lesse......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT