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James v. Missouri State Highway Patrol

Court of Appeals of Missouri, Eastern District, Second Division

November 29, 2016

MONTRELL JAMES, Respondent,
v.
MISSOURI STATE HIGHWAY PATROL, Appellant.

         Appeal from the Circuit Court of St. Louis County Honorable Barbara W. Wallace.

          ROY L. RICHTER, Judge.

         The 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.

         I. Background

         On 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.[1] 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 served.

         On May 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 offense.

         The 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.

         On 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.

         The 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.

         On 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.

         The Highway Patrol appeals from the circuit court's judgment.

         II. Discussion

         The 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.

         Second, 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.

         A. Stand ...


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