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State v. Fanning

Court of Appeals of Missouri, Western District, Second Division

July 24, 2018

STATE OF MISSOURI, Appellant
v.
HELEN JEAN FANNING, Respondent

          APPEAL FROM THE CIRCUIT COURT OF BUCHANAN COUNTY The Honorable Keith B. Marquart, Judge

          Before: Mark D. Pfeiffer, Presiding Judge, Lisa White Hardwick and Edward R. Ardini, Jr., Judges

          Lisa White Hardwick, Judge

         The State appeals the dismissal of a misdemeanor charge against Helen Fanning for violation of the compulsory school attendance law. The State argues that the circuit court erred in finding that Section 167.031.1, RSMo 2016, [1] is ambiguous as to whether a parent's failure to cause a child between the ages of seven and sixteen to regularly attend school constitutes a misdemeanor under Section 167.061. Because we find that the plain language of Sections 167.031.1 and 167.061 unambiguously criminalizes such conduct, we reverse the circuit court's dismissal and remand the case.

         Factual and Procedural History

         In 2017, the State charged Fanning with violating the compulsory school attendance law, Sections 167.031 and 167.061, by failing to cause her son to attend a required academic program on a regular basis. The State alleged in its probable cause statement that Fanning's son, who was thirteen years old at the time, was habitually absent or tardy from his middle school and had an attendance rate of 82%.

         Fanning filed a motion to dismiss for failure to charge an offense. In her motion, she alleged that the plain language of Sections 167.031 and 167.061 criminalizes only a parent's failure to cause a child between the ages of five and seven to attend school regularly and does not criminalize a parent's failure to cause a child who is between the ages seven and the district's compulsory attendance age, which is sixteen, to attend school regularly.

         The court held a hearing on Fanning's motion. Fanning reiterated her argument that the plain language of Sections 167.031 and 167.061 criminalizes only nonattendance by children between the ages of five and seven. Alternatively, she argued that the statutes are ambiguous and, pursuant to the rule of lenity, should be construed in her favor. Following the hearing, the court agreed with Fanning and found that the statutes are ambiguous and should be construed in her favor. Therefore, the court dismissed the information for failure to charge an offense. The State appeals.

         Standard of Review

         In reviewing the sufficiency of an information, we consider whether the information:

(1) properly advise[d] the defendant of the nature and cause of the accusation against him; (2) consist[ed] of a plain, concise and definite written statement of the essential facts constituting the offense charged; (3) state[d] facts which constitute the offense charged with reasonable certainty; and (4) ma[d]e the averments so clear and distinct that there could be no difficulty in determining what evidence would be admissible under them.

State v. Fernow, 328 S.W.3d 429, 430 (Mo. App. 2010) (citation omitted). In her motion to dismiss, Fanning did not contest the language per se of the misdemeanor information. Instead, she argued that that statutes cited in the information were not intended to define a criminal offense. Hence, the issue before us is one of statutory interpretation. Statutory interpretation is an issue of law, which we review de novo. State v. Jacobson, 526 S.W.3d 228, 232 (Mo. App. 2017).

         Analysis

         In its sole point on appeal, the State contends the circuit court erred in dismissing the information on the basis that the State failed to charge an offense. The State argues that it alleged facts constituting a violation of a provision of Section 167.031, and the ...


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