Danny Joe Dixon v. Missouri State Highway Patrol ( 2019 )

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
DANNY JOE DIXON, )
Respondent, )
)
v. ) WD82346
)
MISSOURI STATE HIGHWAY ) FILED: September 24, 2019
PATROL, et al., )
Appellants. )
Appeal from the Circuit Court of Andrew County
The Honorable Michael J. Ordnung, Judge
Before Division One: Cynthia L. Martin, P.J., and
Victor C. Howard and Alok Ahuja, JJ.
In 2003, Danny Dixon pleaded guilty to sexual misconduct in the third
degree, a class C misdemeanor. He was given a suspended imposition of sentence,
and successfully completed his two-year probationary period. As required by
Missouri law, Dixon registered as a sex offender beginning in 2003. In 2018, he
filed a petition in the Circuit Court of Andrew County to have his name removed
from the sex offender registry. The circuit court granted Dixon’s petition, and
ordered that he be removed from the registry. The Missouri State Highway Patrol
appeals. It argues that the circuit court erred in granting Dixon’s removal petition
because Dixon is a “tier III” offender subject to a lifetime registration obligation
under §§ 589.400.4(3) and 589.401.3.1 We conclude that Dixon is a “tier I” offender,
and that he was accordingly eligible for removal from the sex offender registry after
1 Unless otherwise indicated, statutory citations refer to the 2016 edition of the
Revised Statutes of Missouri, as updated through the 2018 cumulative supplement.
ten years. See § 589.401.4(1). Because the Highway Patrol does not otherwise
dispute that Dixon met the conditions for removal from the registry, we affirm the
circuit court’s judgment.
Factual Background
In July 2003, Dixon told a fifteen-year-old girl over the telephone that she
sounded and looked sexy, and asked her about her sexual activity. Dixon was forty-
seven years old at the time. He was charged in the Circuit Court of Andrew County
with sexual misconduct in the third degree, a class C misdemeanor, in violation of
§ 566.095, RSMo 2000. Dixon pleaded guilty in November 2003. The circuit court
suspended imposition of sentence and placed Dixon on probation for 2 years. He
was successfully discharged from probation in November 2005. Due to his
conviction,2 Dixon was required to register as a sexual offender. He has
continuously registered since his guilty plea in 2003.
On August 28, 2018, Dixon filed a petition in the Circuit Court of Andrew
County pursuant to § 589.401, seeking to have his name removed from the sex
offender registry. After holding an evidentiary hearing, the circuit court granted
Dixon’s petition. The court concluded that Dixon’s conviction made him a “tier I”
offender, and that he was accordingly entitled to petition for removal from the
registry because more than ten years had elapsed since he was first required to
2 In this opinion we refer to the disposition of Dixon’s 2003 offense as a
“conviction” for ease of reference. We recognize that Dixon received a suspended imposition
of sentence, and that such a disposition is generally not considered a “conviction” under
Missouri law. See, e.g., Hoskins v. State, 329 S.W.3d 695, 698 n.3 (Mo. 2010); Yale v. City of
Independence, 846 S.W.2d 193, 196 (Mo. 1993). The 2003 disposition required Dixon to
register as a sex offender, however, because Missouri law imposes registration obligations
on persons “adjudicated” of particular offenses. See §§ 589.414.5(1), .6(1), .7(2).
“Adjudicated” is defined to include “a finding of guilt [and] plea of guilt,” § 589.404(1), and
accordingly includes persons who receive a suspended imposition of sentence following a
guilty plea. See R.W. v. Sanders, 168 S.W.3d 65, 71 (Mo. 2005); Yale, 846 S.W.2d at 196. In
addition, a suspended imposition of sentence is considered a “conviction” for purposes of the
federal sex offender registration statutes, and a Missouri-resident offender required to
register under federal law is likewise required to register under Missouri law. See, e.g., Doe
v. Belmar, 564 S.W.3d 415, 417 n.3 (Mo. App. E.D. 2018).
2
register. The court noted that “[t]he Prosecuting Attorney of Andrew County . . .
has no objection to the relief requested by [Dixon]; and the victim in this matter,
having previously been contacted by the prosecuting attorney, has no objection to
[Dixon]’s name being removed from the sexual offender registry.” The circuit court’s
judgment found that Dixon: had successfully completed his probation for the
underlying offense; had fully complied with his registration obligations; was “not a
current or potential threat to public safety”; and had “in all respects complied with
the requirements of Section 589.401” to be removed from the sex offender registry.
Accordingly, the court ordered that Dixon’s name be removed from the sex offender
registry, and declared “that he has no further requirements to register thereunder.”
The Highway Patrol appeals.
Standard of Review
“An appellate court will reverse a judgment of a trial court when it is not
supported by substantial evidence, is against the weight of the evidence, or
erroneously declares or applies the law.” Petrovick v. State, 537 S.W.3d 388, 390
(Mo. App. W.D. 2018) (citations and internal quotation marks omitted).
“Questions of statutory interpretation are reviewed de novo.” Id. (citation
and internal quotation marks omitted). “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.” State ex rel. Hillman v. Beger, 566 S.W.3d 600,
604–05 (Mo. 2019) (citation and internal quotation marks omitted). “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
3
the plain language of the statute at issue.” IBM Corp. v. Dir. of Revenue, 491
S.W.3d 535, 538 (Mo. 2016) (citation omitted).3
Analysis
The Highway Patrol argues that the circuit court erred in removing Dixon’s
name from the sex offender registry, because the offense of which he was convicted
rendered him a “tier III” offender, meaning that he was required to register as a sex
offender for the rest of his life.
Deciding this appeal requires that we review the history of the offense of
which Dixon was convicted, and the history of the sex offender registration statutes.
A.
Dixon pleaded guilty in 2003 to an offense which was then called “sexual
misconduct in the third degree.” At the time of his guilty plea, § 566.095, RSMo
2000, provided:
1. A person commits the crime of sexual misconduct in the
third degree if he solicits or requests another person to engage in
sexual conduct under circumstances in which he knows that his
requests or solicitation is likely to cause affront or alarm.
2. Sexual misconduct in the third degree is a class C
misdemeanor.
At the time, “[t]he authorized term[ ] of imprisonment” for a class C misdemeanor
was “a term not to exceed fifteen days.” § 558.011, RSMo Cum. Supp. 2003.
In 2013, the General Assembly amended the sexual misconduct statutes. See
H.B. 215, 97th Gen. Assembly, 1st Reg. Sess. (2013). Section 566.090, RSMo 2000,
which defined the offense of sexual misconduct in the first degree, was repealed.
The offense was “transferred to section 566.101 and renamed second-degree sexual
abuse.” State v. Ward, 485 S.W.3d 380, 380 n.1 (Mo. App. E.D. 2016).4
3 Abrogated on other grounds by § 144.030.2(5), RSMo Cum. Supp. 2018.
4 In 2006, the General Assembly removed the language which criminalized
“deviate sexual intercourse with another person of the same sex” from § 566.090, RSMo
2000. H.B. 1698, 93rd Gen. Assembly, 2nd Reg. Session (2006). Presumably this
4
As a result of the repeal of § 566.090, and the elimination of what had been
the first-degree offense, the remaining sexual misconduct offenses were renamed
without substantive modification. Thus, the offense of sexual misconduct in the
second degree, defined in § 566.093, was renamed “sexual misconduct in the first
degree.” At the same time, sexual misconduct in the third degree – the offense of
which Dixon had been convicted – was renamed “sexual misconduct in the second
degree.” See § 566.095. Although the name of Dixon’s offense was altered, the 2013
amendment did not change: (1) the elements of the offense; (2) the classification of
the offense as a class C misdemeanor; or (3) the punishment for the offense. With
the additions indicated by underline and the deletions by strikeout, the 2013
amendment of § 566.095 made the following non-substantive changes to the statute:
1. A person commits the crime offense of sexual misconduct
in the third second degree if he or she solicits or requests another
person to engage in sexual conduct under circumstances in which he or
she knows that his requests such request or solicitation is likely to
cause affront or alarm.
2. The offense of sexual misconduct in the third second
degree is a class C misdemeanor.
The maximum authorized punishment for the offense remained what it was
previously: “a term not to exceed fifteen days.” § 558.011.1(8). Section 566.095 has
not been amended since 2013.
B.
Missouri’s Sex Offender Registration Act (“SORA”), § 589.400 et
seq., became effective on January 1, 1995. The statute
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
amendment was made in response to the decision in Lawrence v. Texas, 539 U.S. 558
(2003), which held that it was unconstitutional for States to criminally prosecute
consenting adults for engaging in “sexual practices common to a homosexual lifestyle.” Id.
at 578.
5
be associated with a risk of sexual offenses against
minors, such as child kidnapping.
Petrovick, 537 S.W.3d at 390 (quoting Doe v. Phillips, 194 S.W.3d 833, 839 (Mo.
2006)).
When originally enacted, “the registration requirements imposed by
Missouri’s sex-offender registration statute ‘[were] lifetime registration
requirements,’” with limited exceptions. Wilkerson v. State, 533 S.W.3d 755, 758
(Mo. App. W.D. 2017) (quoting § 589.400.3, RSMo 2016). In 2018, the General
Assembly amended SORA. The 2018 amendments for the first time divided sexual
offenders into three “tiers,” based on the severity of the offenses of which they were
convicted.5 The 2018 amendments specified that only offenders in the highest tier –
tier III – would be subject to a lifetime registration obligation.
Tier I, the least severe category, consists of offenders convicted of fifteen
listed offenses, including “[s]exual misconduct in the second degree under section
566.095.” § 589.414.5(1)(m). Although tier I sexual offenders are required to
register for fifteen years, § 589.400.4, such an offender may file a petition “to have
his or her name removed from the sexual offender registry” after ten years, if the
offender meets certain criteria. § 589.401.4(1). If the circuit court finds that the
petitioner meets the statutory criteria, the court will enter “judgment directing the
removal of the name” of the offender from the registry, and such person “is not
required to register under” SORA for that offense. §§ 589.401.16, .17.
Tier II consists of persons convicted of thirteen listed offenses. § 589.414.6.
Tier II offenders are required to register for twenty-five years. § 589.400.4.
5 As explained in footnote 2, above, SORA requires certain persons to register
as sex offenders even if they have not technically been “convicted” of a sexual offense.
Although not strictly accurate, for ease of reference we use the term “convicted” to describe
the offenders required to register under SORA.
6
Tier III, the most severe category, consists of persons convicted of thirty-six
listed offenses. § 589.414.7. In addition, the statute includes a “catch-all” provision,
which specifies that tier III includes “[a]ny offender who is adjudicated in Missouri
for any offense of a sexual nature requiring registration under [SORA] that is not
classified as a tier I or tier II offense in this section.” § 589.414.7(5). A tier III
sexual offender must register for life, and cannot petition the court for removal from
the registry (unless the relevant offense was committed as a juvenile, and resulted
in an adjudication of delinquency). §§ 589.400.4(3), 589.401.3.
C.
The Highway Patrol argues that the circuit court erred in granting Dixon’s
petition for removal from the sex offender registry because the offense for which he
was convicted – sexual misconduct in the third degree – is not listed in the
definition of tier I and tier II offenders, and he must therefore be considered a tier
III offender under the catch-all provision, § 589.414.7(5).6 The crux of the Highway
Patrol’s argument is that Dixon’s offense of sexual misconduct in the third degree
under § 566.095, RSMo 2000, is not the same as “sexual misconduct in the second
degree under section 566.095,” the offense listed in the definition of tier I.
§ 589.414.5(1)(m). We disagree.
In 2003, Dixon was convicted under § 566.095 of an offense which is today
known as “sexual misconduct in the second degree.” The offense that was called
“sexual misconduct in the third degree” prior to 2013 is the same offense that is
today known as “sexual misconduct in the second degree”: the pre- and post-2013
offenses have the same elements; are both classified as class C misdemeanors; and
are subject to the same range of punishment. Besides the non-substantive changes
6 Notably, the Highway Patrol makes no argument that Dixon should not get
the benefit of the 2018 amendments to SORA because he was convicted of his predicate
offense in 2003.
7
to make the statute gender neutral and to replace the term “crime” with the term
“offense,” all that has changed is the name – a fact that Highway Patrol concedes.
If anything, the current name of the offense (which characterizes it as a “second-
degree” crime) makes that offense sound more serious than the “third-degree”
offense of which Dixon was convicted. Moreover, as our review of the statutory
history of § 566.095 demonstrates, the name of Dixon’s offense was changed in 2013
only because the General Assembly chose to rename the pre-2013 offense of sexual
misconduct in the first degree, and transfer that offense to a different statutory
section. Because of the elimination of what had previously been “sexual misconduct
in the first degree,” the legislature renamed what were formerly the second-degree
and third-degree offenses, to fill the void created by elimination of the previous
first-degree offense.
Although the definition of a tier I offender refers to Dixon’s offense by its
current name in § 589.414.5(1)(m), that provision must be read to include offenders
like Dixon who were convicted of the same offense under its former name. The
Highway Patrol argues that the mere act of renaming Dixon’s offense had the effect
of subjecting him to a lifetime sex offender registration obligation, even though
persons convicted of the same offense after 2013 are entitled to removal from the
sex offender registry after ten years. We refuse to attribute such significance to the
2013 renaming. As William Shakespeare observed more than 400 years ago,
“What’s in a name? That which we call a rose / By any other name would smell as
sweet.” Romeo and Juliet, Act II, scene ii. Although arising in different contexts,
prior cases have found that merely changing the name of an offense has no
substantive effect, where it is not accompanied by any change to the elements of the
offense, or to the authorized punishment for the offense.7
7 See State v. Elder, 36 S.W.3d 817, 820-21 (Mo. App. S.D. 2001) (appellant not
entitled to withdraw guilty plea, or to resentencing, based on renaming of offense, and re-
8
The Highway Patrol’s argument is inconsistent with the fundamental
principle that “the construction of a statutory scheme should avoid unreasonable or
absurd results.” State ex rel. Hillman, 566 S.W.3d at 608 (citation and internal
quotation marks omitted). If not absurd, it is at a minimum unreasonable to
attribute to the General Assembly the intent to treat offenders convicted of a “third
degree” offense more severely than persons later convicted of the same offense,
simply because it is now called a “second degree” offense. It would be unreasonable
to attribute significant, substantive effect to the legislature’s “housekeeping” act of
renaming the offense to which Dixon pleaded guilty.8
The Highway Patrol’s argument would lead to an even more incongruous
result with respect to offenders convicted of the offense that was called “sexual
misconduct in the second degree” prior to 2013. That offense was defined in
§ 566.093, RSMo Supp. 2004. Post-2013, the offense is now denominated “sexual
misconduct in the first degree.” See § 566.093. SORA specifies that persons
convicted of “[s]exual misconduct in the first degree under section 566.093,” as well
codification of offense in different statutory section, prior to his sentencing; “the fact that
the amendments changed the name of the offense from ‘Sodomy’ to ‘Statutory sodomy in the
first degree’ is irrelevant; the authorized term of imprisonment for the act remained the
same”); State v. El Dorado Mgmt. Corp., Inc., 801 S.W.2d 401, 406 (Mo. App. E.D. 1990)
(referring to offense by new name in verdict director was not a fatal variance from charging
instrument; despite the name change, “[f]or purposes of the charge made against the
appellant, . . . the statute has remained, in essence, the same”).
8 In a similar context, we refused to attribute substantive effect to an
amendment which renumbered some of the sub-sections of a statute, and created confusion
concerning certain cross-references carried forward from the pre-amendment statute. We
explained:
We cannot believe that the legislature intended to make such a drastic
change . . . simply by taking what had been subparagraphs 198.067.2(1)(a)–
(e) and renumbering them, without relevant change, as subparagraphs
198.067.3(1)–(5). . . . [I]f a statute goes through a revision by renumbering or
rearranging a section without changing the substance of the statute, the
legislature is presumed to have adopted the construction which had already
existed.
State Dep’t of Soc. Servs., Div. of Aging v. Carroll Care Ctrs., Inc., 11 S.W.3d 844, 853 (Mo.
App. W.D. 2000) (Stith, J.) (citation omitted).
9
as persons convicted of “[s]exual misconduct in the second degree under section
566.095” are tier I offenders. §§ 589.414.5(l), (m). Yet, although persons convicted
of “sexual misconduct in the second degree” prior to 2013 were convicted under a
statutory section listed in the definition of a tier I offender, and were convicted of an
offense whose name appears in the definition of a tier I offender, under the Highway
Patrol’s argument they would – like Dixon – be subject to lifetime sex offender
registration.
The unreasonableness of the Highway Patrol’s proposed statutory
construction is highlighted by examining the other offenses included within tier III.
All of those offenses are significantly more serious than the offense of which Dixon
was convicted. Dixon pleaded guilty to a class C misdemeanor which carried a
maximum authorized sentence of 15 days’ incarceration. Of the thirty-six offenses
specifically identified in the definition of a tier III offender, all are felonies, with the
sole exception of a class B misdemeanor which is included in the definition only if
the offense is committed by a recidivist felony offender.9 It is hard to believe that
the General Assembly intended for Dixon’s conviction of a class C misdemeanor to
render him a tier III offender, when every other person falling within that category
9 The single non-felony listed in the definition of tier III is the offense of
patronizing prostitution, which is generally characterized as a class B misdemeanor. See
§ 567.030.3. Patronizing prostitution is included in the definition of a tier III offender,
however, only if the offender “is a persistent offender.” § 589.414.7(2)(dd). A “persistent
offender” “is one who has been found guilty of two or more felonies committed at different
times.” § 588.016.3.
Sexual conduct with a nursing facility resident or vulnerable person in the first
degree is included in the definition of a tier III offender only if “the punishment is greater
than a year.” § 589.414.7(2)(m). The offense is generally described as a class A
misdemeanor, see § 566.115.2, for which the maximum term of imprisonment would be “a
term not to exceed one year.” § 558.011.1(6). The offense is classified as a class E felony,
however, on “[a]ny second of subsequent violation of this section,” see § 566.115.2, which
would subject the offender to the level of punishment falling within SORA’s definition of a
tier III offender. § 558.011.1(5).
10
must either be convicted of a current felony, or have been convicted of two or more
prior felonies.
Notably, the class C misdemeanor of sexual misconduct in the second
(formerly third) degree is the lowest classification offense even in tier I – all of the
other tier I offenses are class B misdemeanors or greater. Indeed, Dixon’s offense is
the lowest classification offense listed in the definition of any of SORA’s three tiers.
It hardly makes sense for the least severe offense in the entire tiered structure to be
placed in the highest tier.
It bears emphasis that, for purposes of statutory construction, the Missouri
Supreme Court has characterized SORA as a “penal statute.” J.S. v. Beaird, 28
S.W.3d 875, 877 (Mo. 2000); see also Kersting v. Replogle, 492 S.W.3d 600, 605–07
(Mo. App. W.D. 2016). Penal statutes are to be strictly – not liberally – construed,
and the “rule of lenity” is applied to resolve ambiguities against the government.
Id.; see also, e.g., United Parmacal Co. of Mo., Inc. v. Mo. Bd. of Pharmacy, 208
S.W.3d 907, 913 (Mo. 2006); Spradlin v. City of Fulton, 982 S.W.2d 255, 261-62 (Mo.
1998). These principles provide additional justification for rejecting the Highway
Patrol’s proposed interpretation.
The Highway Patrol cites to Robertson v. State, 392 S.W.3d 1 (Mo. App. W.D.
2012),10 and argues that “sexual misconduct in the third degree under Section
566.095, RSMo (1995), cannot be the same crime as any other crime.” In Robertson,
we held that the offense of “deviate sexual assault” listed in the Sexually Violent
Predator Act “was a different offense than the crime of deviate sexual assault in the
first degree for which Robertson was convicted in June 1995,” because the earlier
and later offenses had materially different elements (even though they had similar
sounding names). 392 S.W.3d at 4. As we have explained above, this case is
10 Abrogated by 2013 amendment to § 632.480(4). See H.B. 215, 97th Gen.
Assembly, 1st Reg. Session (2013).
11
fundamentally different: the elements of Dixon’s offense are identical to those of the
offense currently known as “sexual misconduct in the second degree.”
The Highway Patrol also argues that the General Assembly knew how to list
outmoded offenses in SORA when it wished to, since it provided that offenders
would fall within tier I if they had been convicted of “[c]hild molestation in the
second degree under section 566.068 as it existed prior to January 1, 2017, if the
punishment is less than one year.” See § 589.414.4(n); see Robertson, 392 S.W.3d at
5 (concluding that “the legislature was fully aware of the necessity to list offenses
which no longer existed, when it wanted to do so,” based on the listing of certain
“archaic offenses” in the definition of a “sexually violent offense”). The elements
and classification of the offense of child molestation in the second degree were
fundamentally altered as of January 1, 2017, however. Prior to 2017, the offense
constituted a class A misdemeanor and consisted of the act of subjecting a person
less than seventeen years of age to sexual contact. See §§ 566.068.1, .2, RSMo 2000.
Post-2017, the offense was re-classified as a class B felony, and now consists of the
acts of subjecting “a child who is less than twelve years of age” to sexual contact, or
subjecting a child less than seventeen to sexual contact in circumstances which
constitute “an aggravated sexual offense.” § 566.068. Given these fundamental
changes to the offense, it is not surprising that the legislature treated the pre- and
post-2017 offenses differently, specifying that those convicted before 2017 would
constitute tier I offenders, while those convicted of the substantially more serious
post-2017 offense would fall within tier III. See § 589.414.7(q). We note yet again
that the nature of the offense of which Dixon was convicted was not altered by the
2013 amendment to § 566.095.
Conclusion
Under SORA, Dixon is a tier I sexual offender and was therefore eligible to
petition for removal from the sex offender registry once more than ten years had
12
elapsed since the registration obligation was imposed. Dixon’s 2018 removal
petition was timely, given that he was first subject to a registration obligation in
2003. Because the Highway Patrol does not contend that Dixon otherwise failed to
satisfy the statutory requirements for removal from the registry, the judgment of
the circuit court is affirmed.
Alok Ahuja, Judge
All concur.
13