dissenting.
I respectfully dissent. I believe that according to the plain language of Section 556.037 RSMo Cum.Supp.1992, the victim in this case did not meet the qualification of “a person seventeen years of age or under” inasmuch as she was seventeen years, nine months and twenty-two days on the date of the charged offense.
As indicated in the principal opinion, Section 556.036, RSMo 1986, provides that a prosecution for a class A felony- may be commenced “at any time,” and a prosecution for “any felony” must be commenced within three years. Section 556.037, RSMo Cum.Supp.1992, provides, however, that notwithstanding the provisions of Section 556.036, RSMo 1986, prosecutions for unlawful sexual offenses involving a person “seventeen years of age or under” must, if a felony, be commenced within ten years after commission of the offense. Thus, if the victim was at or below the age qualification of the statute, the prosecution here would have been timely.
I am convinced that the victim here was not a person “seventeen years of age or under” and, therefore, the ten-year statute of limitations of Section 556.037, RSMo Cum.Supp.1992, does not apply. Although I find no Missouri case on point, there are several state supreme court cases from other jurisdictions that I find persuasive. In Gibson v. The People, 44 Colo. 600, 99 P. 333, 334 (1908), the court interpreted a statute defining delinquent children as children “sixteen (16) years of age or under.” Id. The state contended that the statute included children during their entire sixteenth year and up to their seventeenth birthday. Id. The court held that in the true sense, a child is sixteen and over when it passes the first day of the sixteenth anniversary of its birth. Id. It said:
[h]ad it been the intention' to include children up to the time they reach their seventeenth birthday, the general assembly would naturally have said “children under seventeen years of age.” But when only those “sixteen (16) years of age or under” were mentioned, “it obviously meant what it said, namely, children sixteen (16) years of age or under,” not “sixteen years of age and over.” ... “A child is sixteen years of age on the sixteenth anniversary of his birth, and thereafter is over sixteen years of age.”
Id. at 334-335. Likewise, the Supreme Court of Iowa held in Knott v. Rawlings, 250 Iowa 892, 96 N.W.2d 900, 901 (Iowa 1959), that a statute prohibiting certain acts with a “child of the age of sixteen years, or under” meant that a person met that qualification only on and prior to his sixteenth birthday. It said that the statutory phrase must be construed to mean just what it says, “sixteen years and not sixteen years, six months and three days.” Id. In explaining, the court said:
[t]o say that sixteen years and six months means the same as sixteen years is to play loosely with words which have a definite meaning. It has been suggested that when one is asked to state his age he gives only the age at the latest anniversary of his birth and does not add the additional months and days which a completely correct statement would require, and this is cited as indicating it is commonly accepted that one is sixteen until his seventeenth birthday anniversary. All such arguments are unsound. When the legislature wrote “sixteen years” into the statute it intended the words to be construed ac*63cording to their ordinary meaning. It is contended that when the legislature used the words “a child of the age of sixteen years, or under” it intended such words to mean “a child under seventeen years of age.” That contention is answered by the fact that it chose words “sixteen years, or under” in preference to the words “under seventeen years” which it would have used had it intended what the State maintains it intended.
Id.
The Supreme Court of Louisiana construed a statute defining children as persons “[seventeen] years of age and under” in State v. Lanassa, 125 La. 687, 51 So. 688 (1910). There, the court reversed a conviction and thereby rejected the contention that a person has met that criteria so long as they are under the age of eighteen years. Id. at 688-89. In holding that a person is no longer “[seventeen] years of age or under” after they reach the age of seventeen, the court said that a contrary conclusion would be based on the predicate that a minor, having attained the age of seventeen years, grows no older until he reaches the age of eighteen years. Id. at 688.
In State v. Jordan, 528 A.2d 731, 732 (R.I.1987), the Supreme Court of Rhode Island interpreted a statutory provision that a person is guilty of first degree sexual assault if he engages in sexual penetration with a person “thirteen (13) years of age or under.” It held that a person thirteen years and ten months did not meet that definition, which it interpreted as meaning a person who had reached the day prior to their thirteenth birthday or were under that age. Id. at 733-34. Another Rhode Island supreme court case to the same effect is State v. Collins, 543 A.2d 641, 645-46 (R.I.1988) (overniled on other grounds) where the court held that under a criminal statute a person “thirteen (13) years of age or under” does not include persons after the thirteenth anniversary of their birth. Id.
Similar decisions that support this result are State v. McGaha, 306 N.C. 699, 295 S.E.2d 449, 450 (1982) (child twelve years and eight months is not a “child of the age of [twelve] years or less”); State v. Maxson, 54 Ohio St.2d 190, 375 N.E.2d 781, 782 (1978) (a statute proscribing sexual conduct with a person known to be “not over fifteen years of age” means a person who has not passed his or her fifteenth birthday- — they are over fifteen after that birthday).
To be sure, there are cases reaching somewhat contrary results. See People v. Wilkins, 22 A.D.2d 497, 257 N.Y.S.2d 288, 293-94 (N.Y.App.Div.1965) (statute referring to a child “over the age of ten years” means a person who has reached his eleventh birthday); Phillips v. State, 588 S.W.2d 378, 380 (Tex.Crim.App.1979) (statute protecting child “[fourteen] years of age or younger” includes in its scope a child fourteen years, one month- — it protects children who have not attained their fifteenth birthday); Hansen v. State, 421 So.2d 504 (Fla.1982) (child who was eleven years three months was within statutory definition of “eleven years of age or younger”); State v. Carlson, 223 Neb. 874, 394 N.W.2d 669, 674 (1986) (a statute proscribing sexual assault of a child “fourteen years of age or younger” protects a person whose age is less than fourteen years, and also a person who has reached and passed his or her fourteenth birthday, but has not yet reached his or her fifteenth birthday). I do not believe that the reasoning of these cases, however, is as persuasive as those cited above.
My conclusion is in keeping with the principle that criminal statutes must be construed strictly against the State and liberally in favor of the defendant. State *64v. Jones, 899 S.W.2d 126, 127 (Mo.App. E.D.1995). “No person may be made subject to a criminal statute by guesswork or mere implication and a criminal statute may not be held to include offenses or persons other than those clearly described and provided for within both the spirit and letter of the statute.” Id.
According to the concurring opinion filed in this case, everyone would agree with the majority opinion except “a few highly-teeh-nical jurists.” Since I disagree with the majority opinion and agree with the supreme courts of several states, that characterization apparently applies to me as well. The concurring opinion argues that the theory of this dissent and the cases upon which it relies may be “technically correct,” but is at variance with common understanding.
Statutory interpretation, however, can, by its nature, be somewhat technical. It is important to remember that statutes should be interpreted based on the plain and ordinary meaning of words used and not what courts would like for them to say. “Courts lack the authority to read into a statute a legislative intent that is contrary to the intent made evident by giving the language employed in the statute its plain and ordinary meaning.” Buttress v. Taylor, 62 S.W.3d 672, 679 (Mo.App. W.D.2001). Additionally, “[i]n interpreting a statute, we are required to give meaning to each word, clause, and section of the statute whenever possible.” Id. “It is presumed the legislature intended that every word, clause, sentence and provision of a statute have effect; conversely, it will be presumed the legislature did not insert idle verbiage or superfluous language in a statute.” Lincoln County Stone Co., Inc. v. Koenig, 21 S.W.3d 142, 146 (Mo.App. E.D.2000).
That being the case, I believe it is important to acknowledge that the legislature here used the words “seventeen years of age or under.” Section 556.037, RSMo Cum.Supp.1992 (emphasis added). One of the definitions of “age” is “the length of time during which a being or thing has lived or existed: the length of life or existence from birth or beginning to the time spoken of or referred to.” WebsteR’s Third New INTERNATIONAL Dictionary (1976). As pointed out by the authorities upon which I rely, a person has lived seventeen years of age when he or she reaches the seventeenth anniversary of their birth.
Applying the reasoning in Gibson, if it had been the legislature’s intention in choosing the words “seventeen years of age or under” to include children up to the time they reach their eighteenth birthday, it would have used the words “under the age of eighteen years.” 99 P. at 334. While it is common for people to express their age by referring to them last birthday, the court in McGaha characterized this “common practice” as based on the fiction that we grow older only at yearly intervals, rather than the fact that we grow older a day at a time. 295 S.E.2d at 450. Applying the reasoning of that case, after a person celebrates their seventeenth birthday, they are no longer “seventeen years of age or under,” but instead are seventeen years of age or more.
Because I believe that here the victim was not “seventeen years of age or under” I would conclude that the ten-year statute of limitations contained in Section 556.037, RSMo Cum.Supp.1992, does not apply. That leaves the question, however, as to the possible applicability of the provision in Section 556.036.1, RSMo 1986, permitting prosecution for any class A felony “at any time.”
As pointed out in the principal opinion, Appellant was originally charged with forcible rape pursuant to Section 566.030, *65RSMo Cum.Supp.1992. The information alleged that he committed the class A felony of forcible rape, in violation of Section 566.030, RSMo, punishable under Section 566.030, RSMo. (five years to life imprisonment) in that defendant had sexual intercourse with another person by the use of forcible compulsion. Appellant contends, and I agree, that this did not effectively charge a class A felony. Under Section 566.030.2, RSMo Cum.Supp.1992, forcible rape was a “felony” for which the authorized term of imprisonment was five years to life. That same section provided that “unless in the course thereof the actor inflicts serious physical injury on any person, displays a deadly weapon or dangerous instrument in a threatening manner or subjects the victim to sexual intercourse or deviate sexual intercourse with more than one person, in which cases forcible rape or an attempt to commit forcible rape is a class A felony.” Section 566.030.2, RSMo Cum.Supp.1992.
The information in this case said that it charged a “[cjlass A[f]elony” but it did not contain any factual allegations that would make it so. Thus, it did not allege that Appellant had inflicted serious physical injury on the victim, displayed a deadly weapon in a threatening manner or any of the other factual scenarios required for a class A felony under Section 566.030 in effect at that time. Also noted is the fact that the information referred to a range of punishment of five years to life, obviously referring to the “felony” of forcible rape, as compared to the available range of punishment for a class A felony of ten to thirty years, or life imprisonment as authorized by Section 558.011.1(1), RSMo Cum.Supp. 1992.
An indictment must contain all essential elements of the offense as set out in the statute and must clearly apprise the defendant of the facts constituting the offense. State v. Gilmore, 650 S.W.2d 627, 628 (Mo. banc 1983). In Gilmore, a murder case, the court said that the charge failed to allege that the defendant acted “deliberately,” that deliberation is the element which distinguishes capital murder from second degree murder, and that it was an essential element of capital murder. Id. at 629. If all elements of an offense are not alleged, they will not be supplied by in-tendment or implication. State v. Parkhurst, 845 S.W.2d 31, 33 (Mo. banc 1992).
Rule 23.01(b) provides, in pertinent part, that “[a]ll indictments or informa-tions that are substantially consistent with the forms of indictments or informations that have been approved by this Court shall be deemed to comply with the requirements of this Rule 23.01(b).” MACH-CR 20.01 (1998) clearly provides for the allegation of the statutorily mandated facts in order to charge forcible rape as a class A felony. The Notes on Use to that form refer to the necessary factual allegations as “punishment enhancement provisions” and provide that if the state intends to invoke one or more of these punishment enhancement provisions, the appropriate factual allegations contained in Section 566.030.2 should be included in the charge.
Based on these considerations, I do not believe that Appellant was effectively charged with the class A felony of forcible rape. Accordingly, the provision in Section 556.036.1, RSMo 1986, permitting prosecution for that classification of felony “at any time” would not apply here. Since the victim was also not seventeen years of age or under so as to permit prosecution within ten years under Section 556.037, RSMo Cum.Supp.1992, I would be constrained to hold that the applicable statute of limitations was the three-year statute for “any felony” under Section 556.036.2(1), RSMo 1986. Since that stat*66ute had expired when the complaint was filed in this case, I believe Appellant had a real statute of limitations defense to the original charge that, had he been advised of it, could have realistically affected his decision to enter a plea on a plea bargain. Since I believe that is the case here, I would hold that the plea was not voluntary or with understanding of his rights, would grant relief under the motion.