Robertson v. State, WD 74623.

• Citation: 392 S.W.3d 1
• Decision Date: 18 December 2012
• Docket Number: No. WD 74623.,WD 74623.
• Parties: In re the Matter of Eric ROBERTSON, Respondent, v. STATE of Missouri, Appellant.
• Court: Court of Appeal of Missouri (US)

392 S.W.3d 1

In re the Matter of Eric ROBERTSON, Respondent,

v.STATE of Missouri, Appellant.

No. WD 74623.

Missouri Court of Appeals,

Western District.

Oct. 30, 2012.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Dec. 18, 2012.

Timothy A. Blackwell, Jefferson City, MO, for appellant.

Erika R. Eliason, Columbia, MO, for respondent.

Before: JOSEPH M. ELLIS, P.J., and ALOK AHUJA and MARK D. PFEIFFER, JJ.

ALOK AHUJA, Judge.

The State of Missouri appeals a judgment entered by the Probate Division of the Circuit Court of Jackson County, which dismissed the State's petition to have Eric Robertson involuntarily committed as a sexually violent predator pursuant to §§ 632.480 to 632.513 (the “SVP Act”).¹ The probate court concluded that Robertson had not previously been convicted of a “sexually violent offense” under § 632.480(4), and was therefore ineligible for involuntary commitment under the SVP Act. We affirm.

Factual Background

Robertson was incarcerated at the Northeast Correctional Center with a scheduled release date of September 12, 2011. Prior to his release, the State conducted an assessment to determine if Robertson was a sexually violent predator under the SVP Act. After a multidisciplinary team and a prosecutor's review committee concluded that Robertson met the definition of a sexually violent predator, the State filed a petition on August 18, 2011, to have him involuntarily committed in the custody of the Department of Mental Health.

The State's petition alleged that Robertson qualified for involuntary commitment based (in part) on the fact that he had previously been convicted of a “sexually violent offense” within the meaning of § 632.480(4). To support this allegation, the State's petition relied on Robertson's June 5, 1995 conviction of deviate sexual assault in the first degree in the Circuit Court of Jackson County.²

On August 29, 2011, Robertson filed a Motion to Dismiss for Failure to Prove a Sexually Violent Offense Pursuant to RSMo 632.480(4), alleging that the offense to which he pled guilty in 1995 did not fall within the statutory definition of a “sexually violent offense.” The probate court granted Robertson's motion. It found that the offense of deviate sexual assault in the first degree, to which Robertson pled guilty in June 1995, was not a “sexually violent offense” under § 632.480(4). Because prior conviction of a “sexually violent offense” is a condition precedent to involuntary commitment under the SVP Act, the probate court held that the State's petition failed to state a claim under the Act. The State appeals.

Standard of Review

Appellate review of a trial court's grant of a motion to dismiss is de novo. When this Court reviews the dismissal of a petition for failure to state a claim, the facts contained in the petition are treated as true and they are construed liberally in favor of the plaintiffs. The State's petition states a cause of action if its averments invoke principles of substantive law that may entitle the plaintiff to relief. Our review of a motion to dismiss for failure to state a claim is solely a test of the adequacy of the plaintiff's petition. We make no attempt to weigh any alleged facts to determine whether they are credible or persuasive, but review the petition only to determine if the facts alleged meet the elements of a recognized cause of action or of a cause that might be adopted.State ex rel. Koster v. Portfolio Recovery Assocs., LLC, 351 S.W.3d 661, 663–64 (Mo.App. E.D.2011) (citations and internal quotation marks omitted).

Analysis

Section 632.480(5) defines a “sexually violent predator” subject to commitment under the SVP Act as:

any person who suffers from a mental abnormality which makes the person more likely than not to engage in predatory acts of sexual violence if not confined in a secure facility and who:

(a) Has pled guilty or been found guilty, or been found not guilty by reason of mental disease or defect pursuant to section 552.030, RSMo, of a sexually violent offense; or

(b) Has been committed as a criminal sexual psychopath pursuant to section 632.475 and statutes in effect before August 13, 1980.

The SVP Act defines a “sexually violent offense” in § 632.480(4), which provides:

“Sexually violent offense” [means] the felonies of forcible rape, rape, statutory rape in the first degree, forcible sodomy, sodomy, statutory sodomy in the first degree, or an attempt to commit any of the preceding crimes, or child molestation in the first or second degree, sexual abuse, sexual assault, deviate sexual assault, or the act of abuse of a child as defined in subdivision (1) of subsection 1 of section 568.060, RSMo, which involves sexual contact, and as defined in subdivision (2) of subsection 1 of section 568.060, RSMo.

These definitions of a “sexually violent predator” and a “sexually violent offense” were enacted in 1998, effective January 1, 1999. See H.B. 1405, 1998 Mo. Laws 530, 534. The relevant definitions have not been revised since that time.

When Robertson pled guilty to deviate sexual assault in the first degree in June 1995, the statute defining his offense provided:

1. A person commits the crime of deviate sexual assault in the first degree if he has deviate sexual intercourse with another person to whom he is not married and who is incapacitated or who is fourteen or fifteen years old.

2. Deviate sexual assault in the first degree is a class C felony unless in the course thereof the actor inflicts serious physical injury on any person or displays a deadly weapon in a threatening manner, in which cases the crime is a class B felony.

§ 566.070, RSMo 1986.³Section 566.080.1, RSMo 1986, provided that “deviate sexual assault in the second degree” occurred “if, being seventeen years old or more, [a person] has deviate sexual intercourse with another person to whom he is not married who is sixteen years old.”

Prior to the enactment of the SVP Act in 1998, the General Assembly eliminated the offenses of deviate sexual assault in the first degree and deviate sexual assault in the second degree. In their place, the legislature created a new offense of “deviate sexual assault,” a class C felony, which occurs when an offender “has deviate sexual intercourse with another person knowing that he does so without that person's consent.” § 566.070. Section 566.070 has remained unchanged from the time of the passage of the SVP Act in 1998, to the present day.

As can readily be seen, the offense of deviate sexual assault as it existed at the time of the passage of the SVP Act was a different offense than the crime of deviate sexual assault in the first degree for which Robertson was convicted in June 1995. The crime for which Robertson was convicted required that he have had deviate sexual intercourse with a fourteen- or fifteen-year-old, and made no reference to whether the sexual contact was or was not consensual. By contrast, the deviate sexual assault offense in existence at the time the SVP Act was passed is not limited to victims of a particular age, and instead applies in every case in which an offender has deviate sexual intercourse with another person, and “does so without that person's consent.” ⁴ By the time the SVP Act was passed, the legislature had created two other new offenses, statutory sodomy in the first degree and statutory sodomy in the second degree, which criminalized deviate sexual intercourse with minor victims of particular ages. See §§ 566.062, 566.064. These new statutory sodomy offenses— not the new “deviate sexual assault” offense—evidently took the place of the former offenses of sodomy ( § 566.060.3, RSMo 1986), deviate sexual assault in the first degree, and deviate sexual assault in the second degree.

The State's argument that Robertson was convicted of a “sexually violent offense” in 1995 is straightforward: according to the State, “[d]eviate sexual assault in the first degree is deviate sexual assault.” Opening Br. at 20. “Because [Robertson] pled guilty to a crime of deviate sexual assault, and deviate sexual assault is listed in § 632.480(4), [the Court] should conclude that [Robertson] has pled guilty to a qualifying predicate sexual offense.” Id. at 24.

Although superficially plausible, we find the State's reading of § 63 2.480(4) unpersuasive. The State's argument assumes that the term “deviate sexual assault” in § 632.480(4) is a generic classification, used to denote a category subsuming all degrees of an offense. To the contrary, we conclude that § 632.480(4) specifically and precisely identifies the offenses which render an individual eligible for commitment as a sexually violent predator, using the technical nomenclature of Missouri's criminal statutes. “Deviate sexual assault in the first degree” is not one of the crimes identified as a “sexually violent offense” in § 632.480(4). We reach this conclusion for multiple reasons.

First, § 632.480(4) specifically identifies the degrees of an offense which constitute sexually violent offenses, in every case in which an offense had multiple degrees of severity as defined in 1998. Thus, the statute specifically provides that statutory rape in the first degree, statutory sodomy in the first degree, and child molestation in the first and second degrees constitute “sexually violent offenses.” The only offenses which are identified in § 632.480(4) without any “degree” qualification are offenses which had no degree gradations in 1998: forcible rape (§ 566.030); rape (§ 566.030.3, RSMo 1986; § 566.030, RSMo 1978; § 559.260, RSMo 1969); forcible sodomy (§ 566.060.1); sodomy (§ 566.060.3, RSMo 1986); sexual abuse (§ 566.100.1); sexual assault (§ 566.040.1); deviate sexual assault (§ 566.070.1); and abuse of a child (§ 568.060.1).

Indeed, if the State were correct that § 632.480(4) uses generic terms to define offense categories, the inclusion of the broad terms “rape” and “sodomy” would make much of the rest of the litany in § 632.480(4) redundant...