In the Missouri Court of Appeals
Eastern District
DIVISION ONE
ERIC EDWARD BACON, ) No. ED107919
)
Respondent, ) Appeal from the Circuit Court
) of St. Charles County
vs. )
) Hon. Jon Alan Cunningham
MISSOURI STATE HIGHWAY PATROL, )
COLONEL DAVID TODD AND ST. )
CHARLES COUNTY PROSECUTING )
ATTORNEY, )
) Filed:
Appellants. ) April 7, 2020
The Missouri State Highway Patrol, Colonel David Todd and the St. Charles County
Prosecuting Attorney (collectively “MSHP”) appeal from the judgment granting E.B.’s
(“Petitioner”) petition to have his name removed from the sex offender registry under Missouri’s
Sex Offender Registration Act (“SORA”), Section 589.400 et seq. We affirm.
On November 21, 2002, Petitioner pled guilty in St. Charles County to possession of child
pornography. On July 29, 2004, Petitioner pled guilty in St. Louis County to possession of child
pornography. He received a suspended imposition of sentence in both cases and was placed on
probation. SORA did not include a registration requirement for this offense at the time of
Petitioner’s adjudications. Possession of child pornography was added to the list of offenses
requiring registration when SORA was amended in August 2004. Petitioner was notified that he
was required to register as a sex offender and has been on the registry for at least ten years.
Until recently, SORA treated all sexual offenses the same and imposed on all offenders a
lifetime registration requirement, with limited exceptions. Effective August 28, 2018, the
legislature restructured SORA. Sexual offenders are now divided into three tiers based on the
severity of the offense, and each tier has different registration periods ranging from fifteen years
to the offender’s lifetime. The legislature also included provisions under which repeat offenders
are subjected to higher tiers and longer registration periods. Below is a summary of each tier:
• Tier I contains fifteen listed offenses, including possession of child pornography.
See Section 589.414.5(1)(a)-(o). Those “adjudicated” 1 for a tier I offense are
required to register for fifteen years and they must report to law enforcement
annually. See Sections 589.400.4(1) and 589.414.5. The registration period can be
reduced to ten years if the offender maintains a clean record. See Section 589.400.5
• Tier II covers thirteen listed offenses. See Section 589.414.6(1)(a)-(m). Tier II also
includes certain repeat tier I offenders: “[a]ny person who is adjudicated of an
offense comparable to a tier I offense listed in this section . . . and who is already
required to register as a tier I offender due to having been adjudicated of a tier I
offense on a previous occasion.” Section 589.414.6(2). A tier II offender is
required to register for twenty-five years, reporting semi-annually. See Sections
589.400.4(2) and 589.414.6.
• Tier III is for the most severe offenders, consisting of thirty-six listed offenses and
covering predatory and persistent sexual offenders. See Sections 589.414.7(1) and
589.414.7(2)(a)-(jj). Tier III also includes certain repeat tier I and tier II offenders:
“[a]ny offender who is adjudicated for a crime comparable to a tier I or tier II
offense listed in this section . . . who has been or is already required to register as a
tier II offender because of having been adjudicated for a tier II offense, two tier I
offenses, or combination of a tier I offense and failure to register offense, on a
previous occasion.” Section 589.414.7(3). A person adjudicated for a tier III
offense is required to register for his lifetime, reporting every ninety days. See
Sections 589.400.4(3) and 589.414.7.
The legislature intended for those currently on the registry to get the benefit of the new
shorter registration time periods for offenses that are now deemed to be in the lower severity tiers:
“any person currently on the sexual offender registry for having been adjudicated for a tier I or II
1
An “adjudication,” as defined in Section 589.404(1), includes a suspended imposition of sentence following a guilty
plea. Dixon v. Missouri State Highway Patrol, 583 S.W.3d 521, 523 n.2 (Mo. App. W.D. 2019).
2
offense . . . or other comparable offenses listed under section 589.414 may file a petition under
Section 589.401.” Section 589.400.10. A person on the registry for a tier I offense cannot file a
petition for removal until ten years has elapsed since the date he was required to register for his
most recent offense. See Section 589.401.4(1). For a tier II offense, the time period is twenty-five
years from that date. See Section 589.401.4(2). The date a person is “required to register” is
typically three days after adjudication, release from prison or placement on probation. See Section
589.400.2.
In September of 2018, shortly after these changes to SORA became effective, Petitioner—
as a person “currently on the sexual offender registry”—filed a petition to have his name removed.
In accordance with Section 589.401, Petitioner identified the two possession of child pornography
cases that required him to register and claimed they arose out of the same incident. 2 He alleged
these were tier I offenses. Petitioner asserted that he was adjudicated for those offenses on
November 21, 2002 and July 29, 2004. But because those offenses did not carry a registration
requirement he was not required to register within three days of either adjudication. Rather, he
alleged that the date he was required to register was August 28, 2004, which is when possession
of child pornography was added to SORA’s list of registerable sex offenses. Because it had been
more than ten years since that date, Petitioner argued he was eligible to have his name removed
from the registry. The MSHP argued that because he had two adjudications for tier I offenses,
Petitioner was actually considered a tier II offender under Section 589.414.6(2) and was only
2
According to his testimony, on the same day in February 2002, Petitioner downloaded the pornographic images at
his office in St. Louis County (resulting in the July 2004 adjudication) and copied them onto a disk that he took to his
home in St. Charles County (resulting in the November 2002 adjudication). It is unclear what impact Petitioner
believed these facts had on the evaluation of his adjudications under SORA, but any such reliance on the “same
incident” argument has been abandoned on appeal.
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eligible to petition for removal after twenty-five years. The trial court agreed with Petitioner and
ordered his name removed from the registry. This appeal follows.
This appeal requires us to interpret, as a matter of first impression, the meaning of the
upgrade provision for repeat tier I offenders in Section 589.414.6(2). This is a question of law that
we review de novo. Dixon v. Missouri State Highway Patrol, 583 S.W.3d 521, 523 (Mo. App.
W.D. 2019). As always, our “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.” Id. We are only permitted to look beyond the plain meaning of the statute
when the language is ambiguous or would lead to an absurd or illogical result.
See Akins v. Director of Revenue, 303 S.W.3d 563, 565 (Mo. banc 2010).
Section 589.414.6(2) states that a tier II offender includes “[a]ny person who is adjudicated
of an offense comparable to a tier I offense listed in this section . . . and who is already required to
register as a tier I offender due to having been adjudicated of a tier I offense on a previous
occasion.” This provision plainly requires not only a previous adjudication for a tier I offense but
also the requirement to register as a tier I offender due to that adjudication. Moreover, by defining
this repeat offender as one “who is adjudicated” for a tier I offense and “who is already required
to register” for a previous tier I offense, it is also clear that the requirement to register must exist
at the time of the second adjudication. In other words, the first tier I adjudication must have carried
a requirement to register and that requirement must have existed at the time of the second tier I
adjudication in order to upgrade the offender to tier II under Section 589.414.6(2).
In this case, when Petitioner was adjudicated for his second tier I offense in 2004, he
already had an adjudication for a tier I offense on a previous occasion in 2002, but he was not at
that time already required to register—“as a tier I offender” or for any reason—because possession
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of child pornography did not yet carry a registration requirement under SORA. Rather, he became
required to register for both offenses simultaneously after that 2004 adjudication by virtue of a
change in the law. The precise date on which that requirement arose is unclear, but it is not
dispositive because, as discussed in the footnote, any of the possible dates was more than ten years
prior to his petition for removal. 3 What is dispositive is the fact that the requirement to register
for the first tier 1 offense in 2002 did not exist at the time of the second adjudication for a tier I
offense in 2004. Petitioner’s situation simply does not fit into the plain meaning of the provision
for upgrading him to a tier II offender.
The MSHP argues that this construction of the words “is already required to register” in
Section 589.414.6(2) is “hyper-technical” and permits a repeat offender like Petitioner to avoid the
increased registration length, which is contrary to the statute’s purpose. The MSHP contends that
by creating a three-tiered system, the legislature intended to take a “three strikes” approach to
recidivists, under which each subsequent tier I offense subjects the offender to a higher tier and
longer registration period until, upon his third tier I offense, he is “out” and must register for his
lifetime. This is reasonable and necessary, it argues, because multiple offenses signal a greater
risk of recidivism. Therefore, the MSHP insists, we must construe “is already required to register”
3
Everyone at trial seemed to agree that the relevant change in the law was the amendment to SORA, effective August
28, 2004, and that was the operative date for calculating the ten-year period under Section 589.401.4(1). But now
Petitioner contends that because it has been held that SORA cannot operate retrospectively to require registration for
offenses that predate its enactment, it is not clear that the 2004 amendments obligated him to register for pre-
amendment offenses. See Doe v. Phillips, 194 S.W.3d 833, 852 (Mo. banc 2006). He contends that it was actually
the enactment of the federal Sex Offender Registration and Notification Act (“SORNA”) 42 USCA Section 16901, et
seq.—which does operate retrospectively to pre-enactment offenders—that obligated him to register for his 2002 and
2004 sex offenses in Missouri. See Doe v. Keathley, 290 S.W.3d 719, 720 (Mo. banc 2009). There is some question
as to the precise date on which pre-enactment offenders were required to register under SORNA, but it could have
been as early as February 28, 2007 or as late as August 1, 2008. See Petrovick v. State, 537 S.W.3d 388, 392 (Mo.
App. W.D. 2018) (discussing “uncertainty as to the precise date on which the Attorney General of the United States
specified that SORNA would apply to pre-enactment offenders”). Because we conclude Petitioner is a tier I offender,
we need not resolve on which of these particular dates Petitioner’s obligation to register arose—August 2004 under
SORA or February 2007 or August 2008 under SORNA—because they are all more than ten years before his
September 2018 petition for removal.
5
in Section 589.414.6(2) as if it simply means that the first tier I offense was a “registerable
offense.” In other words, in Petitioner’s case, his 2002 adjudication for a tier I offense that
ultimately required registration would be a “registerable offense.” Because “2002 comes before
2004,” the MSHP observes, the 2002 registerable offense was adjudicated on an occasion previous
to the 2004 second adjudication for a tier I offense and he must be deemed a tier II offender. We
disagree.
First and foremost, that is not what SORA says. If the legislature meant for a prior
adjudication of a registerable tier I offense alone to elevate one from tier I to tier II, then it would
have used words to that effect instead of the phrase “is already required to register.” It might have
edited Section 589.414.6(2) the MSHP’s arguments suggests: “. . . and who is already required to
register as a tier I offender due to having has been adjudicated of a registerable tier I offense on a
previous occasion.” But, of course, we cannot ignore the words that are actually used in the
statute. We “must presume that every word, sentence, or clause in a statute has effect and that the
legislature did not insert superfluous language.” See Lumetta v. Sheriff of St. Charles County, 413
S.W.3d 718, 720 (Mo. App. E.D. 2013). It is not enough that Petitioner was at some point required
to register because of a 2002 adjudication, which came before the 2004 adjudication; rather, the
key under Section 589.4141.6(2) is the existence of that requirement at the time of the second
adjudication. Because those words are clear and unambiguous, we are not permitted to rewrite the
statute the way MSHP suggests. See generally Strosnider v. Replogle, 502 S.W.3d 756, 759 (Mo.
App. S.D. 2016). Even if it was unclear whether the number and chronology of registerable
offenses alone was enough to upgrade a tier I offender to tier II, that ambiguity would have to be
resolved under the rule of lenity by construing it against the government and giving Petitioner the
benefit of the shorter registration period. See Dixon, 583 S.W.3d at 528 (applying rule of lenity to
6
resolve ambiguities in 2018 SORA amendments against government); see also Kersting v.
Replogle, 492 S.W.3d 600, 605 (Mo. App. W.D. 2016).
Second, the MSHP’s suggested rewrite is not the only way to effectuate the legislative goal
of addressing recidivism. One of the purposes of SORA is—and has always been—“to respond
to the known danger of recidivism among sex offenders.” Doe v. Phillips, 194 S.W.3d 833, 839
(Mo. banc 2006). The restricting of SORA into tiers in 2018 indicates that the legislature
recognizes that not all sex offenses are equally severe and not all sex offenders need to be
monitored by way of registration for the same amount of time. Likewise, the specific provisions
for upgrading a repeat offender to the next tier indicate that the legislature also recognized that not
all repeat sex offenders need to be monitored for longer amounts of time after a second offense.
Rather, Section 589.414.6(2) indicates the legislature’s belief that, for whatever reason, one who
reoffends while he is supposed to be on the registry needs to be monitored for longer after his
second offense than one who reoffends while he is not supposed to be on the registry. Thus, one
“who is adjudicated” for a second tier I offense and who, at that time, “is already required to
register” is upgraded to tier II and must then register for twenty-five years; whereas, one whose
second offense is adjudicated at a time when he is not required to be on the registry—either because
the registration period on the first offense has expired or, as in Petitioner’s case, never existed in
the first place—need only register for ten years after that second offense. 4 It is not for us to
4
We note—without deciding, since this provision is not at issue in this appeal—that it appears there is no such
distinction between re-offense while on the registry and re-offense while not on the registry when determining whether
to upgrade a repeat tier II offender to tier III. The language of that provision, Section 589.414.7(3), is broader and
upgrades to tier III anyone who is adjudicated of a tier I or tier II offense and who “has been or is already required to
register” as a tier II offender. In other words, the upgrade occurs regardless of whether the requirement to register as
a tier II offender has lapsed at the time the offender is adjudicated for a subsequent tier I or tier II offense.
The MSHP points out that when describing the ways one could be required to register as a tier II offender, the
legislature included “having been adjudicated for . . . two tier I offenses.” Section 589.414.7(3) (emphasis added).
This appears to be merely a shorthand way to reference the upgrade in Section 589.414.6(2), not an indication that we
should disregard the actual language of that provision and simply conclude that two tier I offenses equals a tier II
offender. And, again, to the extent use of this shorthand phrasing creates an ambiguity as to what elevates a tier I
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question the reasoning behind the language used, but to strictly apply the words in the statute as
they are written. See Dixon, 583 S.W.3d at 528 (SORA is to be strictly construed).
We would only be permitted to disregard the plain language of Section 589.414.6(2) if
applying the statute as written would lead to an absurd or illogical result. It is not absurd nor
illogical to base the upgrade of a repeat tier I offender on whether he was already required to
register as a tier I offender at the time of his second adjudication for a tier I offense and not solely
on the number of times an offender has been adjudicated for a registerable sex offenses. A repeat
tier I offender is still subject to increased registration periods under our interpretation, just not
based on the criteria the MSHP suggests. Because Petitioner was not required to register at all at
the time of his second adjudication for what is now a tier I offense, he cannot be upgraded to a tier
II offender under Section 589.414.6(2). Petitioner is a tier I offender, it has been at least ten years
since the date he was required to register for his most recent offense and it is undisputed that
Petitioner has complied with the other requirements for filing the petition and satisfied the other
conditions for removal set out in Section 589.401. Thus, the court did not err in granting his
petition and removing him from the sex offender registry.
Point denied. The judgment is affirmed.
ROBERT G. DOWD, JR., Judge
Robert M. Clayton III, P. J. and
Roy L. Richter, J., concur.
offender to tier II status, that ambiguity also would be construed against the government. See Dixon, 583 S.W.3d at
528.
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