In RE: Graham Kersting v. Superintendent Ron Reploge, Missouri State Highway Patrol , 2016 Mo. App. LEXIS 574 ( 2016 )

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
In re: GRAHAM KERSTING, )
Respondent, )
)
v. ) WD78983
)
SUPERINTENDENT RON ) FILED: June 7, 2016
REPLOGLE, MISSOURI STATE )
HIGHWAY PATROL, )
Appellant. )
Appeal from the Circuit Court of Boone County
The Honorable Gary M. Oxenhandler, Judge
Before Division Four: Alok Ahuja, C.J., Mark D. Pfeiffer, J., and J. Dale Youngs, Sp.J.
Graham Kersting filed a petition in the Circuit Court of Boone County to have his name
removed from Missouri’s sexual offender registry. Kersting’s petition alleged that the crime to
which he had previously pled guilty did not subject him to the registration requirement. The
circuit court agreed, and removed Kersting from the registry. The Superintendent of the
Missouri State Highway Patrol, one of the respondents named in Kersting’s petition, appeals.
We affirm.
Factual Background
On March 24, 2004, Kersting pled guilty in the Circuit Court of Boone County to
unlawful use of a weapon and felonious restraint. The charges stemmed from an incident in
which Kersting, then eighteen years old, drove a knife into a door behind which his fifteen-year-
old brother was hiding. Kersting was intoxicated at the time. There was no allegation that
Kersting’s offense was sexual in nature.
Two years later, Kersting was advised that he was required to register as a sexual
offender, even though there was no sexual component to the offenses of which he had been
convicted. Kersting was told he had to register because he had pled guilty to “felonious restraint
when the victim was a child” within the meaning of § 589.400.1(2),1 and was therefore subject to
the statutory registration requirement. Kersting has registered as a sexual offender since that
time.
On March 4, 2015, Kersting filed a petition under § 589.400.8 to have his name removed
from the sexual offender registry. 2 Following an evidentiary hearing at which Kersting and his
mother testified, the circuit court ordered Kersting’s removal from the registry. The court held
that § 589.400.1(2)’s reference to “felonious restraint when the victim was a child” should be
interpreted to mean a “child under the age of 14.” Because Kersting’s brother was fifteen when
Kersting feloniously restrained him, the court concluded that Kersting’s crime did not involve a
“victim [who] was a child,” and therefore did not trigger the statutory registration requirement.
The Superintendent of the Missouri State Highway Patrol (the “State”) now appeals.3
1
Unless otherwise indicated, statutory citations refer to the 2000 edition of the Revised
Statutes of Missouri, as supplemented.
2
Kersting’s petition named Colonel Ron Replogle, then the Superintendent of the
Highway Patrol, as a respondent. Colonel Replogle retired from the Highway Patrol effective May 1,
2015, and was succeeded as Superintendent by Colonel J. Bret Johnson. Kersting’s petition also named
as respondents Boone County Sheriff Dwayne Carey, and Boone County Prosecuting Attorney Dan
Knight.
3
At the hearing on Kersting’s petition, the Prosecuting Attorney’s office agreed with
Kersting that he was not subject to sexual offender registration. The Sheriff did not appear. Neither the
Sheriff nor the Prosecuting Attorney have participated in this appeal.
2
Discussion
The State argues that the circuit court erred in concluding that Kersting was not required
to register as a sexual offender. According to the State, “‘child’ is defined throughout the
Revised Statutes of Missouri as being under seventeen,” and the circuit court therefore erred in
interpreting the word “child” in § 589.400.1(2) to refer only to persons less than fourteen years
old. Because Kersting’s victim was fifteen at the time of his offense, the State contends that he
is subject to the statutory registration requirement.
Although the trial court conducted an evidentiary hearing before issuing its judgment, the
only issue on appeal concerns the proper interpretation of § 589.400.1(2). “Statutory
interpretation is an issue of law that this Court reviews de novo.” Stiers v. Dir. of Revenue, 477
S.W.3d 611, 614 (Mo. banc 2016) (citation and internal quotation marks omitted).
The primary rule of statutory interpretation is to effectuate legislative
intent through reference to the plain and ordinary meaning of the statutory
language. This Court must presume every word, sentence or clause in a statute
has effect, and the legislature did not insert superfluous language. When the
words are clear, there is nothing to construe beyond applying the plain meaning of
the law. A court will look beyond the plain meaning of the statute only when the
language is ambiguous or would lead to an absurd or illogical result.
Bateman v. Rinehart, 391 S.W.3d 441, 446 (Mo. banc 2013) (citations and internal quotation
marks omitted). “In determining the meaning of a word in a statute, the Court will not look at
any one portion of the statute in isolation. Rather, it will look at the word’s usage in the context
of the entire statute to determine its plain meaning.” Union Elec. Co. v. Dir. of Revenue, 425
S.W.3d 118, 122 (Mo. banc 2014) (citations omitted).
A statute is ambiguous when its plain language does not answer the
current dispute as to its meaning. Ambiguities in statutes are resolved by
determining the intent of the legislature and by giving effect to its intent if
possible. When determining the legislative intent of a statute, no portion of the
statute is read in isolation, but rather the portions are read in context to harmonize
all of the statute's provisions. Rules of statutory construction are used to resolve
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any ambiguities if the legislative intent is undeterminable from the plain meaning
of the statutory language.
BASF Corp. v. Dir. of Revenue, 392 S.W.3d 438, 444 (Mo. banc 2012).
Section 589.400.1 identifies the persons subject to sexual offender registration. It
provides in relevant part:
1. Sections 589.400 to 589.425 shall apply to:
(1) Any person who, since July 1, 1979, has been or is hereafter
convicted of, been found guilty of, or pled guilty or nolo contendere to
committing, attempting to commit, or conspiring to commit a felony offense of
chapter 566, including sexual trafficking of a child and sexual trafficking of a
child under the age of twelve, or any offense of chapter 566 where the victim is a
minor, unless such person is exempted from registering under subsection 8 of this
section; or
(2) Any person who, since July 1, 1979, has been or is hereafter
convicted of, been found guilty of, or pled guilty or nolo contendere to
committing, attempting to commit, or conspiring to commit one or more of the
following offenses: kidnapping when the victim was a child and the defendant
was not a parent or guardian of the child; abuse of a child under section 568.060
when such abuse is sexual in nature; felonious restraint when the victim was a
child and the defendant is not a parent or guardian of the child; sexual contact or
sexual intercourse with a resident of a nursing home, under section 565.200;
endangering the welfare of a child under section 568.045 when the endangerment
is sexual in nature; genital mutilation of a female child, under section 568.065;
promoting prostitution in the first degree; promoting prostitution in the second
degree; promoting prostitution in the third degree; sexual exploitation of a minor;
promoting child pornography in the first degree; promoting child pornography in
the second degree; possession of child pornography; furnishing pornographic
material to minors; public display of explicit sexual material; coercing acceptance
of obscene material; promoting obscenity in the first degree; promoting
pornography for minors or obscenity in the second degree; incest; use of a child in
a sexual performance; or promoting sexual performance by a child[.]
(Emphasis added.)
Although § 589.400.1 distinguishes between a “child” and a “minor,” the word “child” is
not defined for purposes of the statute.
“Child” is also not defined in the statute criminalizing felonious restraint, under which
Kersting pled guilty. Instead, § 565.120.1 provides that “[a] person commits the crime of
4
felonious restraint if he knowingly restrains another unlawfully and without consent so as to
interfere substantially with his liberty and exposes him to a substantial risk of serious physical
injury”; § 565.120.2 classifies the offense as a class C felony. Section 565.120 does not
distinguish between “child” and “adult” victims.
While “child” is not defined for purposes of either §§ 565.120 or 589.400, the context in
which the statutes appear contains multiple, persuasive indications that the legislature used the
word “child” to refer to a person less than fourteen years of age. For example, § 565.120.1
provides that, to constitute felonious restraint, the victim must be restrained “without consent.”
Section 565.100.3(1) provides that, for purposes of §§ 565.110 through 565.130, “[a] person is
deemed incapable of consent if he is . . . [l]ess than fourteen years old . . . .” The statutory
section immediately preceding the felonious restraint statute – § 565.115 – defines the crime of
“child kidnapping” as involving the removal or confinement of “a child under the age of
fourteen.”
Similarly, the sexual offender registration statutes distinguish crimes committed against
persons less than fourteen years of age. Section 589.425 specifies the punishments for those who
fail to comply with the statutory registration requirements. Section 589.425.1 provides, in part,
that “[f]ailing to register as a sex offender is a class D felony unless the person is required to
register based on having committed . . . a felony involving a child under the age of fourteen, in
which case it is a class C felony.”
It is also significant that several of the offenses listed in § 589.400.1 appear in chapter
573 of the Revised Statutes, which addresses pornography and related offenses. For purposes of
chapter 573, “child” means “any person under the age of fourteen,” while a “minor” is defined as
“any person under the age of eighteen.” §§ 573.010(1), (10).
5
Kersting also cites § 491.075, which establishes the admissibility of a child’s out-of-court
statements in the prosecution of certain criminal offenses (including many of the offenses which
trigger sexual offender registration requirements). Section 491.075.1 provides that “[a]
statement made by a child under the age of fourteen . . . relating to an offense under chapter 565,
566, 568 or 573, performed by another, not otherwise admissible by statute or court rule, is
admissible in evidence in criminal proceedings in the courts of this state as substantive evidence
to prove the truth of the matter asserted if” the court finds the statement to be reliable, and the
child-declarant either testifies at trial, or is unavailable to testify.
Thus, the statutes read as a whole provide strong indications that the term “child,” as used
in § 589.400.1 with respect to felonious restraint convictions, was intended to refer to persons
under the age of fourteen. On the other hand, the State cites to other offenses listed in
§ 589.400.1, which contemplate that a “child” may be older than fourteen. Thus, the State cites:
§§ 568.045 and 568.050, defining endangering the welfare of a child (“a child [or person] less
than seventeen years of age”); § 568.060.2, defining abuse or neglect of a child (“a child who is
less than eighteen years of age”); § 568.065.1, defining genital mutilation of a female child (“a
female child less than seventeen years of age”); § 568.080.1, defining use of a child in a sexual
performance (“a child less than seventeen years of age”); and § 568.090.1, defining promoting a
sexual performance (“a child less than seventeen years of age”). The State also points to a
variety of other statutes which define a “child” as an unemancipated person under the age of
seventeen, or under eighteen. See §§ 210.201(1), 211.021.1(2), 219.011.1(3), 455.010(3),
491.678.
The State points out that many of the statutes cited by Kersting or the trial court refer to
“a child under the age of fourteen.” The State argues that this phrasing indicates that the statutes
6
are intended to distinguish between two classes of children: those under the age of fourteen, and
those above that age.4
Even if we were to credit the State’s arguments, however, they would establish only that
the term “child” is defined in Missouri statutes in multiple, different ways. At best, the State’s
arguments would prove nothing more than that the term “child” is ambiguous, because it is
reasonably susceptible of different meanings. In the absence of any other means to resolve the
ambiguity, we would be required to apply the rule of lenity, which “requires that we construe
ambiguities in penal statutes against the government ‘and in favor of persons on whom such
penalties are sought to be imposed.’” City of Kansas City v. Tyson, 169 S.W.3d 927, 929 (Mo.
App. W.D. 2005) (quoting J.S. v. Beaird, 28 S.W.3d 875, 877 (Mo. banc 2000)). Although
“[t]raditionally, this rule applies to statutes defining criminal behavior and providing for
sentencing[,] [t]he rule . . . is applicable where violation of a civil statute has penal
consequences.” United Pharmacal Co. of Mo., Inc. v. Mo. Bd. of Pharmacy, 208 S.W.3d 907,
913 (Mo. banc 2006).
In J.S. v. Beaird, 28 S.W.3d 875, the Missouri Supreme Court applied the rule of lenity to
resolve ambiguities in § 589.400. J.S. v. Beaird involved an offender who was residing in
Jackson County at the time § 589.400 was enacted, and who continuously remained a Jackson
County resident thereafter. The question on appeal was whether the offender was subject to
4
The State also cites to a statutory amendment due to take effect in 2017, which defines a
“child” as “a person under seventeen years of age” for purposes of chapter 565. See § 565.002(2)
(effective Jan. 1, 2017). While the Missouri Supreme Court has indicated that it may be appropriate to
look to “acts passed at subsequent legislative sessions” in interpreting a statute, State v. Liberty, 370
S.W.3d 537, 552 (Mo. banc 2012), a later enactment may have the effect of changing, rather than simply
clarifying, existing law. See Webster Cnty. Abstract Co. v. Atkison, 328 S.W.3d 434, 443 (Mo. App. S.D.
2010), citing Andresen v. Bd. of Regents of Mo. W. State College, 58 S.W.3d 581, 589 (Mo. App. W.D.
2001). Given the various definitions of a “child” which appear throughout Missouri’s statutes, we cannot
read the 2017 version of § 565.002(2) as confirming an (unstated) definition which existed prior to that
time.
7
§ 589.400.2, RSMo Supp. 1999, which required registration by an offender “within ten days of
coming into any county.” (Emphasis added.) Examining the statute as a whole, the Supreme
Court interpreted the provision to mean “that only a person coming into a county to establish
residence must register with the sheriff.” Id. at 877 (emphasis added). The Court then
continued:
This contextual reading is reinforced by the rule of lenity, that is, that
ambiguity in a penal statute will be construed against the government or party
seeking to exact statutory penalties and in favor of persons on whom such
penalties are sought to be imposed. While the requirement of registration is not
necessarily punitive, sections 589.400 to 589.425 penalize a failure to register as a
class A misdemeanor and subsequent offenses as a class D felony. Thus, under
the rule of lenity, the statute should be construed so that J.S., who has resided in
Jackson County since the law came into effect, is not required to register.
Id. (citation omitted).
The State argues that the discussion of the rule of lenity in J.S. v. Beaird is obiter dictum,
and that we need not follow it. We disagree. Although J.S. v. Beaird held that a “contextual
reading” of the challenged statutory phrase favored the offender, it also held that a ruling for the
offender was required by the rule of lenity. The Court’s discussion of the rule of lenity may have
been an alternative basis for its holding, and technically unnecessary; nevertheless, J.S. v. Beaird
made an authoritative statement that the rule of lenity applies to the interpretation of § 589.400,
which we are bound to follow. See Self v. Midwest Orthopedics Foot & Ankle, P.C., 272 S.W.3d
364, 367 (Mo. App. W.D. 2008).
The State also argues that the discussion of the rule of lenity in J.S. v. Beaird has been
overruled by later Supreme Court decisions. Those later decisions have held that the sexual
offender registration statutes are not subject to constitutional prohibitions on ex post facto laws,
and may be applied to persons convicted prior to the enactment of the registration statutes,
because the registration statutes are “civil and not punitive.” Roe v. Replogle, 408 S.W.3d 759,
8
767 (Mo. banc 2013); see also Doe v. Phillips, 194 S.W.3d 833, 842 (Mo. banc 2006); R.W. v.
Sanders, 168 S.W.3d 65, 69-70 (Mo. banc 2005). We see no necessary inconsistency between
J.S. v. Beaird and the later ex post facto decisions, however. J.S. v. Beaird itself recognized that
the sexual offender registration statutes were “not necessarily punitive.” 28 S.W.3d at 877. The
Court nevertheless held that, because failure to comply with the statutes can have penal
consequences, ambiguities in the statutes should be interpreted in favor of the offender.
Although the Supreme Court later held that the registration statutes could be applied to pre-
enactment convictions without violating ex post facto principles, the Court acknowledged that
“the registration statutes have both punitive and regulatory attributes.” R.W., 168 S.W.3d at 70.
Whether to apply a strict or liberal construction to the registration statutes (the question
presented by this appeal) is a different issue than whether the statutes can constitutionally be
applied to pre-enactment criminal convictions (the question addressed in the ex post facto cases).
Without a more explicit statement by the Supreme Court that it intended to overrule J.S. v.
Beaird’s discussion of the rule of lenity, we will not read the later cases addressing ex post facto
issues as having that effect.
The State argues that § 589.400 should be liberally, not strictly, construed, because “[t]he
purpose of the sexual offender registry is to protect children against predation by at-large sex
offenders.” Therefore (according to the State) any statutory ambiguity “should be construed to
expand the age range of ‘child,’ not contract it.” J.S. v. Beaird recognized that “[t]he obvious
legislative intent for enacting section 589.400 was to protect children from violence at the hands
of sex offenders.” 28 S.W.3d at 876. Despite this acknowledgement, the Court nonetheless held
that the rule of lenity should apply to resolve ambiguities in the statute.5
5
We also note that Kersting was not convicted of an offense having any sexual
component. The State’s argument that we should broadly interpret the word “child” “to protect children
9
At a minimum, reading the word “child” in § 589.400.1 to refer to persons under the age
of fourteen is a plausible, reasonable interpretation of the term – even if other interpretations are
equally reasonable. The rule of lenity requires that we adopt the reading of the word “child”
most favorable to Kersting. Therefore, even if we concluded that the statutes as a whole left the
question unresolved, we would nevertheless conclude that the word “child” in section 589.400.1,
as it relates to convictions for felonious restraint, must be read to mean a person under the age of
fourteen. Under that construction, Kersting’s felonious restraint conviction did not trigger the
registration requirement, because his victim was fifteen years old at the time of the offense.
Conclusion
The circuit court’s judgment is affirmed.
__________________________________
Alok Ahuja, Chief Judge
All concur.
against predation by at-large sex offenders” therefore seems misdirected. Felonious restraint is one of the
only offenses listed in § 589.400.1(2) which does not include a sexual element. Notably, with respect to
abuse of a child and endangering the welfare of a child, the statute specifies that registration is only
required if the offenses are “sexual in nature.” The facts of this case suggest that it may be appropriate to
limit the registration requirement in the same way for those convicted of felonious restraint. That is a
matter for the legislature, however, not for this Court.
10