Wilkerson v. State
| Decision Date | 03 October 2017 |
| Docket Number | WD 79996 |
| Citation | 533 S.W.3d 755 |
| Parties | Jenette WILKERSON, Respondent, v. STATE of Missouri, Appellant. |
| Court | Missouri Court of Appeals |
Christine Hymes Krug, St. Louis, for appellant.
Julia Chaney, Hannibal, for respondent.
Before Division One: Gary D. Witt, P.J., Alok Ahuja and Edward R. Ardini, Jr., JJ.
Respondent Jenette Wilkerson pleaded guilty to sexual misconduct involving a child in 2010. In 2015, she filed a petition in the Circuit Court of Randolph County, seeking to be removed from the State's sex-offender registry. The circuit court granted Wilkerson relief. The State appeals, arguing that Wilkerson was obligated to register as a sex offender under federal law, and therefore was not entitled to be removed from the State registry. We reverse.
In February 2010, Wilkerson engaged in consensual sexual intercourse with a thirteen-year-old boy. She was eighteen years old at the time. Wilkerson was initially charged with statutory rape; however, as part of a plea agreement, the State amended the charge to the class D felony of sexual misconduct involving a child in violation of § 566.083, RSMo Cum. Supp. 2009. Wilkerson pleaded guilty on August 24, 2010, and was sentenced to three years' imprisonment. Since her release, Wilkerson has registered as a sex offender with the Missouri sex-offender registry.
On October 22, 2015, Wilkerson filed a petition in the circuit court pursuant to §§ 589.400.8 and .9,1 seeking to be released from sex-offender registration requirements. In her petition, Wilkerson admitted that she "engag [ed] in sexual misconduct with a minor age thirteen (13) years of age." Her petition alleged that she was eighteen years old at the time of the offense; that the incident did not involve any force or threat of force; and that there was no evidence the victim suffered any physical or emotional harm. Wilkerson's petition alleged that she had complied with the sex-offender registration requirements; had no subsequent arrests or incidents involving sexual offenses; had been consistently employed; and did not present a danger to others.
The circuit court held an evidentiary hearing on Wilkerson's petition. During her testimony, Wilkerson admitted that in February 2010 she engaged in consensual sexual intercourse with a thirteen-year-old boy when she was eighteen years of age.
The State argued that Wilkerson qualified as a "sex offender" under the federal Sex Offender Registration and Notification Act, 34 U.S.C. §§ 20911 et seq. ("SORNA"), and was accordingly subject to an independent federal obligation to register.2 Because she was subject to SORNA's registration requirements, the State argued that Wilkerson was not entitled to removal from the Missouri sex-offender registry.
On July 14, 2016, the circuit court entered judgment for Wilkerson, ordering that she be "removed from the Missouri sexual offender registration requirements of § 589.400.1." The judgment found that "[m]ore than two years have elapsed since the time [Wilkerson] was ordered to register"; that Wilkerson was eighteen at the time of the offense, and her victim was thirteen; that "[t]here was no threat of force, coercion or use of physical force or a weapon during any encounter and the victim showed no evidence of physical or emotional harm from the events"; and that Wilkerson "has observed the rules and guidelines set forth in the Sex Offender Supervision Agreement, and is and has been in compliance with all provisions thereof." The judgment explicitly stated that "[t]he Court makes no finding if [Wilkerson] is required to register on the Federal Sexual Offender Registry."
The State appeals.
The 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) ).
The State argues that Wilkerson was not entitled to be removed from the Missouri sex offender registry because she was subject to an independent duty to register as a sex offender under the federal SORNA statute. We agree.
Missouri first enacted its version of Megan's Law in 1994, effective January 1, 1995. Megan's Law imposes registration and notification requirements on persons committing crimes listed in chapter 566, certain other sexual crimes, and certain crimes that are not inherently sexual in nature but the legislature believes to be associated with a risk of sexual offenses against minors, such as child kidnapping.
Doe v. Phillips, 194 S.W.3d 833, 839 (Mo. banc 2006) (citations omitted).
Missouri law imposes sex-offender registration requirements on several categories of persons. Among others, the State imposes registration obligations on "[a]ny person who ... has been or is hereafter convicted of ... committing, attempting to commit, or conspiring to commit a felony offense of chapter 566 ... or any offense of chapter 566 where the victim is a minor." § 589.400.1(1). The statute separately imposes registration requirements on "[a]ny person who ... has been or is required to register under tribal, federal, or military law." § 589.400.1(8).
Subject to certain exceptions, the registration requirements imposed by Missouri's sex-offender registration statute "are lifetime registration requirements." § 589.400.3. Wilkerson sought to be released from registration requirements pursuant to § 589.400.8, which provides in relevant part:
Effective August 28, 2009, any person on the sexual offender registry for having been convicted of ... an offense included under subsection 1 of this section may file a petition after two years have passed from the date the offender was convicted ... in the civil division of the circuit court in the county in which the offender was convicted ... for removal of his or her name from the registry if such person was nineteen years of age or younger and the victim was thirteen years of age or older at the time of the offense and no physical force or threat of physical force was used in the commission of the offense....
The statute provides that "[t]he court may grant ... relief" under § 589.400.8 if the offender "demonstrates to the court that he or she has complied with the provisions of this section and is not a current or potential threat to public safety." § 589.400.9(1).
Wilkerson was subject to the requirement to register as a sex offender under § 589.400.1(1), for two separate reasons: (1) she pled guilty to a felony offense under chapter 566; and (2) she pled guilty to a violation of chapter 566 involving a victim who was a minor. The State does not contest that Wilkerson proved her entitlement to removal from the sex-offender registry, with respect to her registration obligation under § 589.400.1(1). As required by § 589.400.8, the circuit court found that Wilkerson was nineteen or younger at the time of her offense; that her victim was thirteen or older; and that no physical force or threat of force was used in the consensual sexual encounter. The circuit court also found, as required by § 589.500.9(1), that Wilkerson was in compliance with her registration obligations under Missouri law, and does not present a current or potential threat to public safety.
The complicating factor in this case, however, is that § 589.400.1(1) is not the sole source of Wilkerson's registration obligation. Instead, she was also required to register pursuant to § 589.400.1(7), because she "has been or is required to register under ... federal ... law." The federal SORNA statute specifies that "[a] sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides." 34 U.S.C. § 20913(a). A "sex offender" is "an individual who was convicted of a sex offense." 34 U.S.C. § 20911(1). The definition of a "sex offense" includes "a criminal offense that is a specified offense against a minor." 34 U.S.C. § 20911(5)(A)(ii). A "specified offense against a minor" includes, among other things, "criminal sexual conduct involving a minor," and "[a]ny conduct that by its nature is a sex offense against a minor." 34 U.S.C. §§ 20911(7)(H), (I).
SORNA's definition of a "specified offense against a minor" was intended to be broad.
In passing SORNA, Congress left courts with broad discretion to determine what conduct is "by its nature" a sex offense. Indeed, Congress's stated purpose was to capture a wider range of conduct in its definition of a "sex offense" .... The key is conduct that contains a "sexual component" toward a minor. Our review of the language of SORNA confirms our conclusion that Congress cast a wide net to ensnare as many offenses against children as possible.
United States v. Dodge, 597 F.3d 1347, 1355 (11th Cir. 2010) (en banc); accord, United States v. Hill, 820 F.3d 1003, 1005-06 (8th Cir. 2016), cert. denied, ––– U.S. ––––, 137 S.Ct. 829, 197 L.Ed.2d 71 (2017). In particular, the language of the "residual clause" (what is now 34 U.S.C. § 20911(7)(I) ) "could not be any broader." Dodge, 597 F.3d at 1355.
To determine whether Wilkerson pled guilty to a "specified offense against a minor," we look not only to the statute under which Wilkerson was convicted, but also to the underlying facts of her offense—a so-called "non-categorical" approach. Doe v. Isom, 429 S.W.3d 436, 442-43 (Mo. App. E.D. 2014) ().
At the time of Wilkerson's conviction, § 566.083.1 defined the offense of sexual misconduct involving a child as follows:
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