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Keeney v. Fitch

Court of Appeals of Missouri, Eastern District, Second Division

March 24, 2015

JEROME KEENEY, JR., Plaintiff/Appellant,
v.
TIM FITCH, SUPERINTENDENT OF POLICE, ST. LOUIS COUNTY and COLONEL RONALD REPLOGLE, SUPERINTENDENT, MISSOURI HIGHWAY PATROL, Defendants/Respondents

Page 839

Appeal from the Circuit Court of St. Louis County. Honorable Robert S. Cohen.

For Plaintiff/Appellant: Michael T. George, St. Louis, MO.

For Fitch, Defendant/Respondent: Lorena V. Von Kaenel, Clayton, MO.

For Replogle, Defendant/Respondent: Michael R. Cherba, St. Louis, MO.

Sherri B. Sullivan, P.J. Mary K. Hoff, J., and Philip M. Hess, J., concur.

OPINION

Sherri B. Sullivan, P.J.

Page 840

Introduction

Jerome Keeney, Jr. (Appellant) appeals from the trial court's summary judgment entered in favor of Tim Fitch, Superintendent of Police, St. Louis County and Colonel Ronald Replogle, Superintendent, Missouri Highway Patrol (Respondents) on Appellant's Petition for Declaratory Judgment. We reverse and remand.

Factual and Procedural Background

In 1988, the St. Louis County Police Department received complaints that various men were engaging in homosexual sexual acts in open view of the public in the parking lot and bathrooms of a rest stop at 700 Dunn Road, situated off Highway 270 and consisting of a tourist information booth, parking lot and associated facilities. As a result of the complaints, the St. Louis County Police Department investigated and conducted an undercover sting operation on September 28, 1988, " reference homosexual activity," in which Detective Robert Bayes of the Bureau of Special Investigation for St. Louis County parked at the rest stop and sat in his car, waiting. While sitting in his car, undercover, Detective Bayes observed Appellant sitting in his car. Appellant started a conversation with Detective Bayes and asked Detective Bayes to sit in Appellant's car with him. Detective Bayes agreed and got in Appellant's car with him at the rest stop. Appellant and Detective Bayes talked for about ten minutes. Appellant placed his hand on Detective Bayes's clothed groin area. Detective Bayes then identified himself as a police officer and placed Appellant under arrest.

The State charged Appellant with attempt sexual misconduct, third degree, a Class C misdemeanor, by information as follows:

That [Appellant], in violation of Section 564.011, RSMo,[1] committed the class C misdemeanor of an attempt to commit the offense of sexual misconduct, punishable upon conviction under Sections 558.011.1(7) and 560.016, RSMo, in that on or about Wednesday, September 28, 1988, at approximately 8:20 p.m., at 700 Dunn Road, in the County of St. Louis, State of Missouri, [Appellant] grabbed the groin of Det. Bayes, and such conduct was a substantial step toward the commission of the crime sexual misconduct, and was done for the purpose of committing such sexual misconduct.

On September 11, 1989, Appellant pled guilty to the charge and received a suspended imposition of sentence and two years' probation.

Section 566.090, the sexual misconduct statute in effect at the time of this incident, provided:

1. A person commits the crime of sexual misconduct if:

Page 841

(1) Being less than seventeen years old, he has sexual intercourse with another person to whom he is not married who is fourteen or fifteen years old; or
(2) He engages in deviate sexual intercourse with another person to whom he is not married and who is under the age of seventeen years; or
(3) He has deviate sexual intercourse with another person of the same sex.
2. Sexual misconduct is a class A misdemeanor.

Section 566.090, RSMo 1978 (since repealed).

Because of this conviction, on January 8, 2010, Appellant was instructed to file his initial registration with the Missouri Sex Offender Registry. On August 30, 2013, Appellant filed a Petition for Declaratory Judgment requesting that he no longer be required to register as a sex offender because attempting to engage in homosexual relations is no longer a criminal offense.

Appellant and Respondents filed cross-motions for summary judgment. Both sides presented their motions to the trial court with proposed findings of fact and conclusions of law. On July 31, 2014, the trial court granted Respondents' motion for summary judgment, adopting their joint proposed findings of fact and conclusions of law as its judgment, and denied Appellant's motion for summary judgment and underlying petition for declaratory relief. This appeal follows.

Points on Appeal

In his first point, Appellant argues the trial court erred in concluding his conduct was not innocent and he therefore should be required to register as a sex offender because the court erroneously declared and/or applied the law by failing to recognize the right to consensual same-sex conduct was affirmed in Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003).

In his second point, Appellant maintains the trial court erred in concluding his obligation to register as a sex offender was based on conduct that occurred " in public" because the court erroneously declared and/or applied the law in that Appellant was not charged with public indecency or an act that had as an element that the charged conduct must have occurred in public.

In his third point, Appellant claims the trial court erred in concluding he should be required to register as a sex offender because the court erroneously declared and/or applied the law by stating that Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), stands only for protecting same-sex relations when they are private sexual acts " committed" in one's home, in that the reasoning of Lawrence was not limited to sexual activity within the home and Appellant did, actually, have the right to rely upon the privacy afforded to a person seated in his darkened automobile at night.

In his fourth point, Appellant asserts the trial court erred in concluding he should be required to register as a sex offender because the court erroneously declared and/or applied the law as stated in State ex rel. Kauble v. Hartenbach, 216 S.W.3d 158 (Mo.banc 2007), by finding the petitioner in Kauble was not entitled to and was denied relief, in that the Missouri Supreme Court ...


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