State ex rel. Whitaker v. Satterfield

• Decision Date: 30 November 2012
• Docket Number: No. SD 31856.,SD 31856.
• Parties: STATE of Missouri ex rel. Jessie WHITAKER, Relator, v. The Honorable Joe Z. SATTERFIELD, Special Judge, 34th Judicial Circuit, Respondent.
• Court: Missouri Court of Appeals

386 S.W.3d 893

STATE of Missouri ex rel. Jessie WHITAKER, Relator,

v.The Honorable Joe Z. SATTERFIELD, Special Judge, 34th Judicial Circuit, Respondent.

No. SD 31856.

Missouri Court of Appeals,

Southern District,

Division One.

Nov. 30, 2012.

Susan M. Elliott, Kansas City, MO, for Relator.

Chris Koster (Attorney General), Shaun J. Mackelprang, Jefferson City, MO, for respondent.

Before LYNCH, P.J., RAHMEYER, J., and FRANCIS, J.

PER CURIAM.

On or about November 14, 2011, the State filed a petition in the Probate Division of the Circuit Court of Pemiscot County seeking the civil commitment of Jessie Whitaker (“Relator”) on the ground Relator meets the criteria of a “sexually violent predator” as defined in section 632.480(5) because Relator (1) currently suffers from a mental abnormality that makes him more likely than not to engage in predatory acts of sexual violence if not confined, and (2) had pled guilty in 1985 to a “sexually violent offense” as defined in section 632.480(4).¹ Relator filed a motion to dismiss the petition on the ground the offense to which Relator pled guilty in 1985 was not a “sexually violent offense”; Respondent denied Relator's motion.

Relator filed a petition for writ of mandamus and/or prohibition to Respondent in this Court on February 15, 2012, requesting that a writ issue directing Respondent to grant Relator's motion to dismiss or prohibiting Respondent from proceeding with the civil commitment. We issued a preliminary order in prohibition on February 28, 2012, directing Respondent to refrain from taking further action in the civil commitment proceeding until further order of this Court. For the reasons set forth below, we conclude Relator's 1985 offense is not a “sexually violent offense” as defined in section 632.480(4), and make our preliminary order absolute.

Facts

The facts are undisputed. In 1985, Relator was charged with, and subsequently pled guilty to, “the Class C felony of sexual assault in the first degree ... in that on or about April 29, 1985, in the County of Pemiscot, ... the defendant had sexual intercourse with S.M., to whom defendant was not married and who was then fourteen years old[,]” a violation of section 566.040 RSMo 1986. The record indicates that Relator: was born on June 17, 1964; committed the offense on April 29, 1985; was charged on July 16, 1985; and pled guilty and was sentenced on October 1, 1985. Presumably, Relator would have been twenty years of age at the time he committed the 1985 offense.

The court sentenced Relator to five years in the Division of Adult Institutions, suspended execution of the sentence, and placed Relator on supervised probation for five years. In 1989, the court revoked Relator's probation.

According to a psychological report contained within the record, Relator has been charged in Dunklin County with forcible rape of a female victim. This alleged offense led to the State filing a petition in Pemiscot County seeking Relator's civil commitment as a sexually violent predator that in turn gave rise to the current writ proceeding. Relator has convictions and arrests for other crimes which are relevant to the claim that he suffers from a mental abnormality that makes him more likely than not to engage in predatory acts of sexual violence if not confined; however, the only claim in this petition of a crime to which Relator has pled or been found guilty that fits the required condition precedent of a “sexually violent offense” pursuant to section 632.480(4) is the 1985 conviction, therefore, the sole issue before us is whether the offense to which Relator pled guilty in 1985 is a “sexually violent offense” as defined in section 632.480(4).²

Analysis

Missouri's sexually violent predator law (“the SVP Act”) was enacted in 1998 with an effective date of January 1, 1999. (Sections 632.480 through 632.513 RSMo 2000, as amended.) Section 632.480(5) defines the phrase “sexually violent predator” as any person who suffers from a mental abnormality that makes him more likely than not to engage in predatory acts of sexual violence if not confined, “and who ... [h]as pled guilty or been found guilty ... of a sexually violent offense[.]”

Section 632.480(4) defines “sexually violent offense” as:

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[.]

Relator was convicted of the class C felony of sexual assault in the first degree as it was defined by section 566.040 in 1985, which is not a specifically listed offense in section 632.480(4).

Respondent argues that the phrase “sexual assault” in section 632.480(4) includes the offense of “sexual assault in the first degree” to which Relator pled guilty in 1985. To reach that conclusion, Respondent assumes that the term “sexual assault” in section 632.480(4) includes all crimes in the category of sexual assault. Just as the Western District of this Court found in In re Robertson, ––– S.W.3d –––– (Mo.App. W.D.2012), we find that “section 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.” Id. at ––––. In its analysis, the court observed:

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 and unnecessary: “forcible rape,” “statutory rape in the first degree,” “forcible sodomy,” and “statutory sodomy in the first degree” would all have been swept into the statute's reach by the simple inclusion of the terms “rape” and “sodomy.” But the statute separately lists various “rape” and “sodomy” offenses, and we “must give meaning to every word or phrase of the legislative enactment.” State v. Moore, 303 S.W.3d 515, 520 (Mo. banc 2010). Moreover, the statute specifically lists statutory rape in the first— but not second—degree, and statutory sodomy in the first— but not second—degree. Drawing these distinctions between different degree of statutory rape and sodomy would have been unnecessary—and ineffective—if the terms “rape” and “sodomy” already signified every offense denominated as a form of “rape” or “sodomy.”

It is also significant that the legislature separately listed as predicate offenses “child molestation in the first or second degree.” There are only two degrees of child molestation. See § 566.067.1, 566.068.1. If—as the State contends—the legislature had intended to include all degrees of an offense by using the “shorthand” of a generic identifier, it would have simply referred to “child molestation” in § 632.480(4). Under the State's argument, using the term “child molestation,” alone, would have comprehended both degrees of “child molestation” in existence in 1998, without any further description. But, once again, that is not what the legislature did. It explicitly listed the two— and only two—degrees of the offense, separately, as “sexually violent offenses,” leaving no doubt as to what it intended to include within the “sexually violent offense” rubric created by the SVP Act. The fact that the legislature did not do the same thing with “deviate sexual assault” speaks volumes. Cf. State v. Moore, 303 S.W.3d 515, 520 (Mo. banc 2010) (“The legislature's use of different terms in different subsections of the same statute is presumed to be intentional and for a particular purpose.”); MC Dev. Co., LLC v. Cent. R–3 School Dist. of St. Francois Cnty., 299 S.W.3d 600, 605 (Mo. banc 2009) (“ ‘When different statutory terms are used in different subsections of a statute, appellate courts presume that the legislature intended the terms to have different meaning and effect.’ ” (citation omitted)).

....

To sum up, when it enacted § 632.480(4), the legislature: used seemingly “generic” terms to identify an offense only where the offense had no degree gradations; identified the specific degrees of an offense which would qualify as “sexually violent offenses” in every case where an offense had multiple degrees; listed all degrees of an offense having multiple degrees where it intended all degrees to constitute “sexually violent offenses”; listed various species of “rape” and “sodomy” separately despite the inclusion of the seemingly generic terms “rape” and “sodomy”; and included former offenses in its listing where no offense by that name existed at the time the SVP Act was enacted. These features of the statute demonstrate that the legislature precisely used the terms of art denominating particular offenses in § 632.480(4).

Id. at –––– – ––––.³

Apropos to this case, sexual assault in the first degree was defined in 1985 in the following manner: “[a] person commits the crime of sexual assault in the first degree if he has sexual intercourse with another person to whom he is not married and who is incapacitated or who is fourteen or fifteen years old.” ⁴Section 566.040.1 RSMo 1986. Effective January 1, 1995, the offense of “sexual assault” has been defined in section 566.040.1 RSMo 1994, as “[a] person commits the crime of sexual assault if he has sexual intercourse with another person knowing that he does so without that person's consent.” Added to the previous section in 1995 are the words “without that person's consent.” Thus, the language in the statute for sexual assault, which was included in section 632.480(4), included the element that the intercourse occurs “knowing that he does so without that person's...