In re: GRAHAM KERSTING, Respondent,
v.
SUPERINTENDENT RON REPLOGLE, MISSOURI STATE HIGHWAY PATROL, Appellant. ) ) ) ) ) ) ) ) )
WD78983
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-
2 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.
3 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
4 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
5 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).
6 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