Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of St. Louis County Honorable Barbara
Missouri State Highway Patrol ("Highway Patrol")
appeals from the order and judgment of the Circuit Court of
St. Louis County removing Petitioner Montrell James
("Petitioner") from the Missouri sex offender
registry. We reverse.
October 2, 2012, Petitioner was indicted for attempted
deviate sexual assault, two counts of armed criminal action
and second-degree child molestation for his alleged actions
on November 7, 2009, with regard to a 15-year-old female
while Petitioner was 18 years old. The indictment alleged
Petitioner acted in concert with three other perpetrators in
assaulting the victim and that a firearm was displayed during
the assault. An Information in Lieu of Indictment filed on
April 14, 2011, added two counts of first-degree sexual
misconduct. Also on April 14, 2011, Petitioner pled guilty to
the two counts of first-degree sexual misconduct, in
violation of Section 566.090 RSMo. in the Circuit Court of St. Louis County;
he registered as a sex offender with St. Louis County law
enforcement immediately after his guilty plea. He was
sentenced on November 3, 2011, to eight months in the St.
Louis County Justice Center and given credit for all time
5, 2015, Petitioner filed a Petition for Declaratory Judgment
and Removal From Sex Offender Registry Pursuant to
Missouri's statutes, Sections 589.400.8 and 589.400.9, in
the Circuit Court of St. Louis County. After admitting that
he was required to register as a sex offender with the
Missouri sex offender registry based on his 2011 guilty plea,
Petitioner argued he met the requirements for removal set
forth in Section 589.400.8, including the requirement that no
force or threat of force was used in the underlying offense.
He sought an order from the court declaring he was no longer
required to register. The Highway Patrol answered the
petition, denying Petitioner's claim that no force or
threat of force was used in the commission of the underlying
Highway Patrol filed a Motion to Dismiss, arguing that
Petitioner was not eligible for removal from the Missouri sex
offender registry because (1) force or threat of force was
used in the commission of the offense, and (2) he has an
"independent, federally mandated registration
requirement" pursuant to the federal Sex Offender
Registration and Notification Act ("SORNA").
Petitioner denied that he had any duty to register under
SORNA. The circuit court heard and denied the Highway
Patrol's Motion to Dismiss.
December 3, 2015, the circuit court held an evidentiary
hearing on Petitioner's petition for declaratory
judgment. Petitioner testified and denied that he used any
physical force during the sex offense or that a weapon was
involved. During cross-examination, the Highway Patrol
impeached Petitioner with the juvenile victim's
deposition testimony in which she testified that a firearm
was used during the assault. Petitioner testified that he had
no recollection of the events described by the victim in her
deposition. The Highway Patrol then offered the victim's
deposition testimony from the underlying criminal case as
evidence offered to impeach Petitioner's testimony.
Petitioner objected to the deposition testimony on hearsay
grounds, and although the court physically accepted the
deposition testimony, it indicated that it would not review
the deposition testimony unless and until the court deemed
the testimony admissible. At the conclusion of the
evidentiary hearing, the court requested further briefing
from the parties as to Petitioner's eligibility for
removal from the registry and the admissibility of the
deposition transcript. The parties filed briefs outlining
their positions on these issues.
circuit court took judicial notice of its file from the
underlying criminal case, including the original Indictment
and Information In Lieu of Indictment. Both referred to a
weapon being used in the assault.
February 18, 2016, the circuit court entered a judgment
sustaining Petitioner's hearsay objection to the
deposition testimony. The court found no evidence that force
or threat of force was used in the commission of the offense,
Petitioner was not a threat to public safety, and he was not
a Tier II sex offender for federal SORNA purposes. Thus, the
circuit court granted Petitioner's request to be removed
from the sex offender registry.
Highway Patrol appeals from the circuit court's judgment.
Highway Patrol raises two points on appeal. First, it alleges
the trial court erred in granting Petitioner's request to
be removed from the Missouri sex offender registry, because
Petitioner's conduct makes him a sex offender requiring
registration pursuant to SORNA, in that Petitioner is a sex
offender under 42 U.S.C. § 16911(1), and 42 U.S.C.
§ 16913(a) requires such sex offenders to register in
the jurisdiction where the offender resides.
the Highway Patrol alleges the circuit court erred in not
admitting prior deposition testimony of the victim because
the deposition was admissible in that it can be used for any
purpose in a civil case and deposition testimony from a
criminal case can be used in a subsequent civil case when the
identity of the issues and parties are the same.