Col. Daniel Isom, Chief of Police for the Metropolitan Police Department, City of St. Louis, the St. Louis Circuit Attorney’s Office, and the Missouri State Highway Patrol (collectively, “Appellants”), appeal from a declaratory judgment in favor of John Doe (“Doe”), a Missouri resident, on Doe’s petition seeking removal of Doe’s name and identifying information from the federal and Missouri’s sex offender registries. We reverse and remand.
I. BACKGROUND
The facts of this case are not in dispute. In May 2008, Doe hacked into the email account of A.R., the 15 year-old-daughter of Doe’s ex-girlfriend. Doe discovered a prior email A.R. had sent to her friend, which contained a picture of A.R. touching her genitals.
Subsequently, the St. Charles County Prosecutor’s office filed a Substitute Information in Lieu of Indictment charging Doe with the following six counts: (1) one count of endangering the welfare of a child in the first degree, in violation of Section 568.045;
Approximately six months after Doe pled guilty, Doe’s Probation Officer directed Doe to the St. Louis Metropolitan Police Department Sex Offender Registration Office to determine whether Doe was required to register as a sex offender. After a determination that he must register, Doe filed his initial registration with Missouri’s Sex Offender Registry on September 11, 2009.
Soon thereafter, Doe filed motions for his removal from the sex offender registries in the Circuit Court of St. Charles County. However, these motions were denied by the trial court in St. Charles County premised upon the reasoning that Doe’s removal from the sex offender registry had to be filed in the jurisdiction where Doe resided — the City of St. Louis.
On February 6, 2012 (almost 3 years after his initial guilty plea) Doe filed a Petition for Declaratory Judgment for Removal from the Sex Offender Registry and Destruction of Records in the Circuit Court of the City of St. Louis. Doe sought a declaratory judgment that he not be required to register as a sex offender under the federal or state sex offender registries. Almost a year later, on January 30, 2013, the trial court entered an Order and Judgment granting Doe’s Petition, finding Doe was not obligated to register under either federal or state law, and that his registration be removed from all sex offender registries.
This appeal now follows.
II. DISCUSSION
In 2006, the United States Congress passed, and the President signed, the Adam Walsh Child Protection and Safety Act of 2006 (“AWA”). See Pub.L. No. 109-248 (2006). For the purpose of “protect[ing] the public from sex offenders and offenders against children,” Title I of AWA established and created the federal Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. § 16901 et seq., a “comprehensive national system for the registration of those offenders.” 42 U.S.C. § 16901. SORNA “requires those convicted of certain sex crimes to provide state governments with (and to update) information, such as names and current addresses, for inclusion on state and federal sex offender registries.” Reynolds v. U.S., — U.S.-,
In order to accomplish this purpose, SORNA requires states to “maintain a jurisdiction-wide sex offender registry” that complies with the standards set forth by SORNA. 42 U.S.C. § 16912(a); see also U.S. v. Felts,
Appellants raise two points on appeal. In their first point, Appellants allege the trial court erred in finding Doe did not have an obligation to register as a sex offender under SORNA, and therefore Doe has no requirement to register under Missouri’s SORA. Specifically, Appellants claim that Doe is a “sex offender” for purposes of SORNA, and is therefore obligated to register under both SORNA and SORA.
Next, Appellants argue that even if Doe is not deemed a “sex offender” for purposes of SORNA, the trial court erred in finding Doe did not have an obligation to register under SORA, because the offense to which Doe pled guilty was “sexual in nature.” Thus, Appellants contend that Doe has an obligation to register under SORA, regardless of his registration obligations under SORNA.
Finding Point I dispositive, we do not reach or address Appellant’s Point II.
Standard of Review
The judgment of the trial court will be upheld on appeal, unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Murphy v. Carron,
Analysis
The dispositive question before this Court is whether Doe’s guilty plea to endangering the welfare of a child in the first degree, under Section 568.045, makes him a “sex offender,” subject to SORNA’s and SORA’s registration requirements.
SORNA defines a “sex offender” as an “individual who was convicted of a sex offense.” 42 U.S.C. § 16911(1). Whether an individual has a “sex offense” conviction determines whether that individual falls within the minimum categories requiring registration under SORNA. See Office of the Attorney General; The National Guidelines for Sex Offender Registration and Notification, 73 Fed.Reg. 38030-01, 38050 (July 2, 2008) (“SORNA’s Guidelines ”). Apart from exceptions not applicable here, “sex offense,” in turn, is either:
(i) a criminal offense that has an element involving a sexual act or sexual contact with another;
(ii) a criminal offense that is a specified offense against a minor;
(iii) a Federal offense (including an offense prosecuted under section 1152 or 1153 of Title 18) under section 1591, or chapter 109A, 110 (other than section 2257, 2257A, or 2258), or 117, of Title 18;
(iv) a military offense specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C. 951 note); or
(v) an attempt or conspiracy to commit an offense described in clauses (i) through (iv).
Id. at § 16911(5)(A). Under the facts of this case, only subparagraph (ii) of 42 U.S.C. § 16911(5)(A) could provide a basis to require Doe to register as a sex offender under SORNA (i.e., was Doe’s guilty plea in the nature of “a criminal offense that is specified against a minor?”). Id. at § 16911 (5)(A)(ii). Whether Doe qualifies
First, pursuant to SORNA, a “criminal offense” is defined as “a State, local tribal, foreign, or military offense ... or other criminal offense.” Id. at § 16911(6) (emphasis added). In Missouri, endangering the welfare of a child in the first degree, Section 568.045, falls under Title XXXVIII of Missouri’s annotated statutes, designated by the Missouri Legislature and commonly referred to as “The Criminal Code,” Section 556.011, and may be charged as a class C or B Felony, subjecting the violator to a range of five to fifteen years’ imprisonment. See Section 568.045; Section 558.011.1(2)-(3); see also Bullington v. State,
Next, we consider whether a violation of Section 568.045 is “a specified offense against a minor.” 42 U.S.C. § 16911 (5)(A)(ii). To do so, we proceed to a subsequent subsection of SORNA which expands the definition of the phrase “specified offense against a minor” to include “all offenses by child predatorsf.]” 42 U.S.C. § 16911(7) (emphasis added). Specifically, the United States Congress defined “specified offense against a minor” as
... an offense against a minor that involves any of the following:
(A) An offense (unless committed by a parent or guardian) involving kidnapping.
(B) An offense (unless committed by a parent or guardian) involving false imprisonment.
(C) Solicitation to engage in sexual conduct.
(D) Use in a sexual performance.
(E) Solicitation to practice prostitution.
(F) Video voyeurism as described in section 1801 of Title 18.
(G) Possession, production, or distribution of child pornography.
(H) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct.
(I) Any conduct that by its nature is a sex offense against a minor.
Id. Litigants focus their attentions upon paragraphs (G) and (I); we focus our attention solely upon paragraph (I) — the “catchall provision” — as we find it to be dispositive; thus, we do not address whether Doe’s guilty plea qualifies as a sex offense under paragraph (G). U.S. v. Byun,
Determining whether Doe’s guilty plea to endangering the welfare of a child in the first degree, under Section 568.045, is “a sex offense against a minor,” pursuant to paragraph (I) of 42 U.S.C. § 16911(7), requires this Court to define “sex offense.”
The statutory language of the criminal offense to which Doe pled guilty, Section 568.045, in relevant part, reads as follows:
1. A person commits the crime of endangering the welfare of a child in the first degree if:
(1) The person knowingly acts in a manner that creates a substantial risk to the life, body, or health of a child less than seventeen years old; or
(2) The person knowingly engages in sexual conduct with a person under the age of seventeen years over whom the person is a parent, guardian, or otherwise charged with the care and custody;
(3) The person knowingly encourages, aids or causes a child less than seventeen years of age to engage in any conduct which violates the provisions of chapter 195;
(4) Such person enlists the aid, either through payment or coercion, of a person less than seventeen years of age to unlawfully manufacture, compound, produce, prepare, sell, transport, test or analyze amphetamine or methamphetamine or any of their analogues, or to obtain any material used to manufacture, compound, produce, prepare, test or analyze amphetamine or methamphetamine or any of their analogues; or
(5)Such person, in the presence of a person less than seventeen years of age or in a residence where a person less than seventeen years of age resides, unlawfully manufactures, or attempts to manufacture compounds, possesses, produces, prepares, sells, transports, tests or analyzes amphetamine or methamphetamine or any of their analogues.
Doe was charged and pled guilty to violation of subsection (1). See Section 568.045.1. As evident by the plain language of the statute, this particular crime “is not in and of itself a sexual offense” on that basis “that ‘non-sex’ acts can also constitute the offense of endangering the welfare of a child in the first degree.” State v. Rains,
Here, Doe’s offense of endangering the welfare of a child in the first degree, indeed, related to a sexual offense. As referenced in the trial court’s Order and Judgment,
While not controlling, the analysis in U.S. v. Dodge,
To determine whether defendant’s conviction constituted a “sex offense” under 42 U.S.C. § 16911(5)(A)(ii), the Eleventh Circuit, in Dodge, relied heavily upon U.S. v. Byun,
Doe goes to great strides to persuade this Court that such an interpretation of SORNA would “stretch and broaden the definition of ‘sex offense’ ” beyond the legislative intent, and is an act of “generalization and verbal wizardry.” However, these arguments have already been addressed and rebutted, in toto, and deserve no further analysis. Additionally, we reject Doe’s argument that his conduct was not “against a minor” but, rather, was “passive in nature as it pertained to the minor victim.” Again, we reject this argument because “against a minor” merely means the conduct as applied to the age of the victim and the “inquiry goes no further than determining whether the victim was a minor.” Dodge,
In finding that Doe is required to register as a sex offender pursuant to SORNA, we, therefore, find Doe is also required to register as a sex offender pursuant to SORA. In Doe v. Keathley,
III. CONCLUSION
The judgment of the trial court entered in favor of Doe on his petition for declaratory judgment is reversed and remanded for a finding consistent with this opinion.
Notes
. A.R. admitted to taking and emailing the picture to her friend.
. It was alleged that several of the recipients of the email (which included the photograph) were under the age of 17.
. All statutory references are to RSMo Cum. Supp.2008, unless otherwise specified.
. Doe’s plea counsel testified that this plea agreement was agreed upon by himself and the St. Charles County Prosecuting Attorney to ensure that Doe was not required to register as a sex offender. The State presented no contrary evidence.
. This analysis occurs because of the very similar language utilized by § 16911 (5)(A)(ii) and § 16911(7)(I). Compare 42 U.S.C. § 1691 l(5)(A)(ii) ("a criminal offense that is a specified offense against a minor) (emphasis added) with 42 U.S.C. 16911(7)(I) ("Any conduct that by its nature is a sex offense against a minor ") (emphasis added).
. We note that this Court was provided with limited evidence, materials and transcripts from Doe’s underlying criminal case which led to his guilty plea.
. A "categorical approach” permits a court to "look only to the fact of conviction and the statutory definition of the prior offense." Taylor v. U.S.,
. Furthermore, this interpretation is in accord with the legislative intent when comparing the inclusion of the word "element” in § 16911 (5)(A)(i) with the use of only the word "offense” in § 1691 l(5)(A)(ii). See U.S. v. Piper,