Smith v. St. Louis Cnty. Police, ED109734

CourtCourt of Appeal of Missouri (US)
Writing for the CourtKelly C. Broniec, Judge
PartiesBROCK SMITH, Appellant, v. ST. LOUIS COUNTY POLICE, ET AL., Respondent.
Docket NumberED109734
Decision Date07 June 2022

BROCK SMITH, Appellant,


No. ED109734

Court of Appeals of Missouri, Eastern District, First Division

June 7, 2022

Appeal from the Circuit Court of St. Louis County Honorable Virginia W. La

Kelly C. Broniec, Judge


Brock Smith ("Smith") appeals from the judgment of the Circuit Court of St. Louis County, which denied his petition for removal from the Missouri Sex Offender Registry (the "Registry") pursuant to § 589.401.[1] In his sole point on appeal, Smith argues that the circuit court erred in denying his petition because he is a "tier I" sex offender who is not required to register for life, but rather, only for a period of ten years, and he otherwise satisfied the requirements for removal from the Registry under § 589.401.

We reverse and remand.


In May of 2005, the State charged Smith with the offense of "sexual misconduct in the first degree." At the time of the offense, "sexual misconduct in the first degree" (a/k/a "first-degree


sexual misconduct") was codified under § 566.090, RSMo (2004), which was defined as "purposely subject[ing] another person to sexual contact without that person's consent." State v. Ward, 485 S.W.3d 380, 381 (Mo. App. E.D. 2016) (alteration in original). In addition, the term "sexual contact," as used in § 566.090, RSMo (2004), was defined as "any touching of another person with the genitals or any touching of the genitals or anus of another person, or the breast of a female person, or such touching through the clothing, for the purpose of arousing or gratifying sexual desire of any person." § 566.010(3), RSMo (2004); see also State v. Love, 134 S.W.3d 719, 722 (Mo. App. S.D. 2004).

On December 18, 2005, Smith pleaded guilty to the charged offense of "sexual misconduct in the first degree," and was granted a suspended imposition of sentence and placed on probation for two years, which he successfully completed. As a result of his guilty plea, however, Smith was required to submit his name and other required information to the Registry pursuant to the Missouri Sex Offender Registration Act-§ 589.400 et seq.-("MO-SORA"), which he did on a timely basis and fulfilled all applicable requirements thereunder.[2]

On January 20, 2021, Smith filed his Petition for Removal From Sex Offender Registry ("Petition"), which requested that he be removed from the Registry pursuant to § 589.401. In his Petition, Smith specifically alleged that he is a "Tier 1 Sexual Offender" under § 589.414, therefore he is entitled to removal because he satisfied all applicable registration requirements and more than ten years had passed since the date he was required to register for his most recent (and only) offense requiring registration. Smith's Petition named the defendants required under § 589.401.6, including the Missouri State Highway Patrol and the St. Louis County Police Department


(collectively the "State"). In its answer to the Petition, the State denied all of Smith's allegations and requested that the Petition be dismissed.

On May 12, 2021, Smith, his attorney, and the State's attorney appeared for a hearing on the Petition. Evidence was adduced, exhibits were presented and admitted, and witness testimony was elicited, including Smith's testimony that he had complied with all the requirements under § 589.401 for removal from the Registry. The State's sole objection to the Petition was that Smith was not permitted to have his name removed from the Registry because, even though he is indeed a "tier I" sex offender under MO-SORA, he is required to register under the separate requirements of the Federal Sex Offender Registration and Notification Act, 34 U.S.C. § 20901 et seq. ("SORNA"), [3] and as such, he is required to remain on the Registry for his entire life given how some Missouri courts have interpreted MO-SORA in conjunction with the separate and independent federal registration requirements under SORNA. In support, the State primarily relied on the Western District's recent decision in Selig v. Russell, 604 S.W.3d 817 (Mo. App. W.D. 2020) transfer denied (May 28, 2020) transfer denied (Sept. 1, 2020), for its proposed interpretation and application of MO-SORA.

On May 20, 2021, the circuit court entered its Order and Judgment in connection with the Petition (the "Judgment"), which denied Smith's request for removal from the Registry. The circuit court agreed with the State and found that MO-SORA requires lifetime registration for anyone, including Smith, who has ever had to register in Missouri for an offense that required registration under SORNA, citing Wilkerson v. State, 533 S.W.3d 755, 758 (Mo. App. W.D. 2017),


Selig, 604 S.W.3d at 824-25, and Hixson v. Missouri State Highway Patrol, 611 S.W.3d 923 (Mo. App. E.D. 2020), in support. This appeal follows.


As in any court-tried case, "[t]he judgment of the trial 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." Doe v. Isom, 429 S.W.3d 436, 439 (Mo. App. E.D. 2014) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). "Questions of statutory interpretation are reviewed de novo." Dixon v. Missouri State Highway Patrol, 583 S.W.3d 521, 523 (Mo. App. W.D. 2019) (quoting Petrovick v. State, 537 S.W.3d 388, 390 (Mo. App. W.D. 2018)) (italics added); accord Bacon v. Missouri State Highway Patrol, 602 S.W.3d 245, 248 (Mo. App. E.D. 2020). "Any time a court is called upon to apply a statute, the primary obligation is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words in their plain and ordinary meaning." Dixon 583 S.W.3d at 523-24 (quoting State ex rel. Hillman v. Beger, 566 S.W.3d 600, 604-05 (Mo. banc 2019)); accord Bacon, 602 S.W.3d at 248. "This Court interprets statutes in a way that is not hypertechnical but instead is reasonable and logical and gives meaning to the statute and the legislature's intent as reflected in the plain language of the statute at issue." Dixon, 583 S.W.3d at 524 (quoting IBM Corp. v. Dir. of Revenue, 491 S.W.3d 535, 538 (Mo. banc 2016)). "We are only permitted to look beyond the plain meaning of the statute when the language is ambiguous or would lead to an absurd or illogical result." Bacon, 602 S.W.3d at 248.


This case requires us to determine whether a "tier I" sex offender under both MO-SORA and SORNA, who is otherwise eligible for removal from the Registry after satisfying the


requirements of § 589.401, must nonetheless remain on the Registry for the remainder of his life due to the purported "interplay" between the requirements of MO-SORA and SORNA, as certain prior decisions of Missouri appellate courts have held, see, e.g., Wilkerson, 533 S.W.3d at 761-62; and Selig, 604 S.W.3d at 824-25, and as the circuit court held. However, before directly addressing the merits of Smith's sole point on appeal, an overview of SORNA and MO-SORA, as well as several relevant Missouri cases interpreting the same, is warranted for proper context.

A. General provisions of SORNA and MO-SORA.

"In 2006, the United States Congress passed, and the President signed, the Adam Walsh Child Protection and Safety Act of 2006 ('AWA')." Isom, 429 S.W.3d at 438 (citing Pub. L. No. 109-248 (2006)). The stated purpose of the AWA is to protect the public from "sex offenders and offenders against children." Id. To that end, "Title I of AWA established and created the federal Sex Offender Registration and Notification Act ('SORNA')," which is a "comprehensive national system for the registration of those offenders." Id. (citing 42 U.S.C. § 16901 et seq.[4]); see also Doe v. Neer, 409 S.W.3d 451, 453 (Mo. App. E.D. 2013) (similarly recognizing that SORNA was enacted in July 2006 "to establish a comprehensive national system for the registration of sex offenders"). SORNA "requires those convicted of certain sex crimes to provide state governments with (and to update) information, such as names and current addresses, for inclusion on state and federal sex offender registries." Isom, 429 S.W.3d at 438 (quoting Reynolds v. U.S., 565 U.S. 432, 434 (2012)).

"SORNA divides sex offenders into three categories: tier I, tier II, and tier III." James v. Missouri State Highway Patrol, 505 S.W.3d 378, 381 (Mo. App. E.D. 2016) (citing 42 U.S.C. § 16911(2)-(3)[5]).


"Tier I is the least severe tier and includes all sex offen[ses] that are not tier II or tier III." Id. Tier I offenders are generally required to register for 15 years, id. at 381-82 (citing 42 U.S.C. § 16915(a)(1)[6]), unless they qualify for the "clean record" reduction, in which case the registration period is ten years, id. at 382 (citing 42 U.S.C. § 16915(b)(2)(A)[7]). The "clean record" reduction under SORNA applies to offenders "who have not been convicted of an offense 'for which imprisonment for more than 1 year may be imposed,' who have not subsequently been 'convicted of any sex offense,' and have completed any applicable probation or parole periods and 'an appropriate sex offender treatment program.'" Id. (citing 42 U.S.C. § 15915(b)(1)[8]). Under SORNA, tier II offenders are required to register for 25 years, and tier III offenders are required to register for their lifetimes. 34 U.S.C. § 20915(a)(2) and (3).

Although SORNA mandates that each state maintain a registry of "sex offenders" (as defined therein), the federal government itself does not maintain its own registry separate from those maintained by the states. Selig, 604 S.W.3d at 821. Rather, "SORNA establishes requirements for the registration of sex offenders that each state must comply with in order to receive certain federal funds." Id.; see also U.S. v. Felts, 674 F.3d 599, 602 (6th Cir....

To continue reading

Request your trial

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