                                                            

                    In the Missouri Court of Appeals
                            Eastern District
                                         DIVISION TWO

JEROME KEENEY, JR.,                           )       ED101981
                                              )
       Plaintiff/Appellant,                   )       Appeal from the Circuit Court
                                              )       of St. Louis County
v.                                            )
                                              )
TIM FITCH, SUPERINTENDENT OF                  )       Honorable Robert S. Cohen
POLICE, ST. LOUIS COUNTY and                  )
COLONEL RONALD REPLOGLE,                      )
SUPERINTENDENT, MISSOURI                      )
HIGHWAY PATROL,                               )
                                              )
       Defendants/Respondents.                )       Filed: March 24, 2015

                                            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:

              (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

                                                            
1
    All statutory references are to RSMo 1978, unless otherwise indicated.

                                                               2
 
          (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 (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.



                                                    3
 
       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 (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 actually found Mr. Kauble should be entitled to the relief he sought but had not named the

proper parties.

                                        Standard of Review

       Whether summary judgment was proper is a question of law. Turner v. School Dist. of

Clayton, 318 S.W.3d 660, 664 (Mo.banc 2010). This Court’s review of a grant of summary

judgment is de novo; therefore, the trial court’s order may be affirmed by this Court on an

entirely different basis than that posited at trial, and this Court will affirm the grant of summary

judgment under any appropriate theory. Id. The Court views the record in the light most

favorable to the party against whom judgment was entered and affords that party the benefit of

all reasonable inferences. Id. For summary judgment to be entered in its favor, the movant has

the burden of proving that no genuine issues of material fact exist and that it is entitled to

judgment as a matter of law. Id.

       The parties to this action do not contest the trial court’s determination that there are no



                                                  4
 
genuine issues of material fact in this case. Rather, the issue on appeal is whether the trial court

erred in determining Respondents were entitled to summary judgment as a matter of law. See

generally Purcell v. Cape Girardeau County Comm’n, 322 S.W.3d 522, 524 (Mo.banc 2010).

                                              Analysis

                                        SORNA and SORA

       In 2006, Congress enacted the federal Sex Offender Registration and Notification Act

(SORNA), 42 U.S.C. §§ 16901-16962 (2006), instructing states to pass legislation setting up a

sex offender registration system and requiring sex offenders to register. 42 U.S.C. §§ 16912-

16913. The statute sought to establish a comprehensive national system for the registration of

offenders in order to “protect the public from sex offenders and offenders against children[.]” 42

U.S.C. § 16901.

       SORNA requires all sex offenders, “including sex offenders convicted of the offense for

which registration is required prior to the enactment of that Act[,]” 28 C.F.R. § 72.3, to “register,

and keep the registration current, in each jurisdiction where the offender resides, where the

offender is an employee, and where the offender is a student.” 42 U.S.C. § 16913(a). SORNA

defines “sex offender” as “an individual who was convicted of a sex offense.” 42 U.S.C. §

16911(1). The definition of “sex offense” includes “a criminal offense that has an element

involving a sexual act or sexual contact with another,” and “an attempt or conspiracy to commit”

that sexual act or contact. 42 U.S.C. § 16911(5)(A). State law crimes are “criminal offenses.”

42 U.S.C. § 16911(6).

       This federal obligation triggers Missouri’s registration requirements under its own sex

offender registration act (“SORA”), which it originally enacted in 1994 and later amended in

2006. Sections 589.400-589.425 RSMo 2006; Doe v. Toelke, 389 S.W.3d 165, 167 (Mo.banc



                                                  5
 
2012). The purpose of SORA is also, like SORNA, to protect children from violence at the

hands of sex offenders and to respond to the known danger of recidivism among sex offenders.

Doe v. Phillips, 194 S.W.3d at 833, 839 (Mo.banc 2006).

       In Section 589.400(7), SORA provides that any person required to register under federal

law, i.e., SORNA, must register with the chief law officers of their county of residence in

Missouri. Under this provision, Respondents maintain Appellant is required to register in

Missouri because he is required to register under SORNA as “an individual who was convicted

of a sex offense” under Missouri state law.

                                     Appellant and the Registry

       As set forth in detail supra, Appellant pled guilty in 1989 to the since-repealed Class C

misdemeanor of attempt third degree sexual misconduct in the form of attempting to engage in

deviate sexual intercourse with an individual of the same sex. Despite the existence of this

historical fact, we find it of no effect at the present time and conclude for all intents and purposes

Appellant has not committed a sex offense making him a sex offender for purposes of registering

under SORNA.

       The sexual offense of which Appellant was convicted in 1989 is no longer a sexual

offense. In Lawrence v. Texas, 539 U.S. 558, 578-79 (2003), the United States Supreme Court

overturned a criminal prosecution for same-sex sodomy. The court held that the Texas criminal

statute under which the defendant was charged was unconstitutional in that a same-sex sodomy

law violates liberty interests under the Due Process Clause. Id. The applicable statute provided

“a person commits an offense if he engages in deviate sexual intercourse with another individual

of the same sex.” Tex. Penal Code Ann. Section 21.06(a) (Vernon 2003). In the instant case,

Appellant was charged under, and pled guilty to, Section 566.090.1(3), RSMo 1978 (since



                                                  6
 
repealed), which provided, “A person commits the crime of sexual misconduct if … [h]e has

deviate sexual intercourse with another person of the same sex.” These statutes are, in all

relevant respects, identical. Lawrence held that the specifically delineated statutory crime with

which Appellant was charged was unconstitutional.

       Further, the statutory section under which Appellant was convicted, Section

566.090.1(3), has ultimately been repealed by the Missouri Legislature. In order to better

understand what became of the statute that was in effect at the time of Appellant’s plea, we set

forth Section 566.090’s transmutations and reincarnations effected by the General Assembly

from that time until present day.

       In 1988, Section 566.090 read as follows:

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

       (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).

       In 1994, the Legislature inserted “in the first degree” in the first subsection introductory

paragraph, deleted subdivisions (1) and (2) and the designation of subdivision (3), and inserted

“or he purposely subjects another person to sexual contact or engages in conduct which would

constitute sexual contact except that the touching occurs through the clothing without that

person’s consent”; and in subsection 2, inserted “in the first degree” and “unless the actor has

previously been convicted of an offense under this chapter or unless in the course thereof the

                                                 7
 
actor displays a deadly weapon in a threatening manner or the offense is committed as a part of a

ritual or ceremony, in which case it is a class D felony.” These changes rendered the following

result, the statutory crime of sexual misconduct set forth in Section 566.090, as it existed in

Missouri from 1995 to 2003:

       Section 566.090

       1. A person commits the crime of sexual misconduct in the first degree if he
       has deviate sexual intercourse with another person of the same sex or he
       purposely subjects another person to sexual contact or engages in conduct
       which would constitute sexual contact except that the touching occurs
       through the clothing without that person’s consent.

       2. Sexual misconduct in the first degree is a class A misdemeanor unless the
       actor has previously been convicted of an offense under this chapter or unless
       in the course thereof the actor displays a deadly weapon in a threatening
       manner or the offense is committed as a part of a ritual or ceremony, in
       which case it is a class D felony.

       In 2003, the Legislature, via L.2002, S.B. Nos. 969, 673 & 855, § A, in subsection 1,

following “sexual contact,” deleted “or engages in conduct which would constitute sexual

contact except that the touching occurs through the clothing.” The result was as follows:

       Section 566.090

       1. A person commits the crime of sexual misconduct in the first degree if he
       has deviate sexual intercourse with another person of the same sex or he
       purposely subjects another person to sexual contact without that person’s
       consent.

       2. Sexual misconduct in the first degree is a class A misdemeanor unless the
       actor has previously been convicted of an offense under this chapter or unless
       in the course thereof the actor displays a deadly weapon in a threatening
       manner or the offense is committed as a part of a ritual or ceremony, in
       which case it is a class D felony.

       In 2006, the Legislature, by L.2006, H.B. Nos. 1698, 1236, 995, 1362 & 1290, § A,

removed from subsection 1, “he has deviate sexual intercourse with another person of the same

sex or he” and replaced it with “such person.” Thus, effective June 5, 2006 until August 28,

                                                  8
 
2013, Section 566.090 provided:

       Section 566.090

       1. A person commits the crime of sexual misconduct in the first degree if such
       person purposely subjects another person to sexual contact without that person’s
       consent.

       2. Sexual misconduct in the first degree is a class A misdemeanor unless the actor
       has previously been convicted of an offense under this chapter or unless in the
       course thereof the actor displays a deadly weapon in a threatening manner or the
       offense is committed as a part of a ritual or ceremony, in which case it is a class D
       felony.

       Next, effective August 28, 2013, by L.2013, H.B. No. 215 § A, Section 566.090 was

transferred to and redesignated Section 566.101, rewritten and retitled “Second degree sexual

abuse, penalties,” which at the current time provides as follows:

       Section 566.101 - Second degree sexual abuse, penalties

       1. A person commits the offense of sexual abuse in the second degree if he or
       she purposely subjects another person to sexual contact without that
       person’s consent.

       2. The offense of sexual abuse in the second degree is a class A misdemeanor,
       unless the actor has previously been convicted of an offense under this
       chapter or unless in the course thereof the actor displays a deadly weapon in
       a threatening manner or the offense is committed as a part of a ritual or
       ceremony, in which case it is a class D felony.

(Transferred from § 566.090 and amended by L.2013, H.B. No. 215, § A, eff. Aug. 28, 2013.)

       No law criminalizing the same conduct set forth in former Section 566.090.1(3) has been

enacted in its place.

       The constitutionality of Section 566.090.1(3) RSMo 1978 (since repealed) was first

raised in State v. Walsh, 713 S.W.2d 508, 513 (Mo.banc 1986). At that time, its constitutionality

was upheld, with the Walsh court finding:

             We believe further that punishing homosexual acts as a Class A
       misdemeanor, see Section 566.090.2, is rationally related to the State’s

                                                9
 
        constitutionally permissible objective of implementing and promoting the public
        morality.
                We further find that Section 566.090.1(3) is rationally related to the
        State’s concededly legitimate interest in protecting the public health. The State
        has argued that forbidding homosexual activity will inhibit the spread of sexually
        communicable diseases like acquired [immunodeficiency] syndrome (AIDS).

Id. at 512.

        In 2013, more than a quarter-century after Walsh, the Missouri Supreme Court decided

Glossip v. Mo. Dep’t of Transp. & Highway Patrol Employees’ Ret. Sys., 411 S.W.3d 796

(Mo.banc 2013). In Glossip, the majority opinion determined a highway patrol spousal survivor

benefits statute does not discriminate on the basis of sexual orientation in violation of the equal

protection clause because the statute drew its distinction on the basis of marital status, not sexual

orientation. Id. at 804. The majority therefore concluded it did not have to reach the issue of the

constitutionality of discrimination based on sexual orientation, but if it did, it would be guided by

federal law, for the Missouri Constitution’s equal protection clause is coextensive with the

Fourteenth Amendment. Id. at 805.

        In his dissenting opinion, joined by Judge Draper, Judge Teitelman mentioned the Walsh

decision and recognized “[a]lthough Walsh held that classifications based on sexual orientation

were not subject to heightened equal protection scrutiny, that conclusion was based on the fact

that homosexual behavior was, at that time, a crime. The rationale of Walsh is no longer viable

in light of Lawrence v. Texas, 539 U.S. 558 (2003), which held that homosexual behavior is no

longer subject to criminalization.” Glossip, 411 S.W.3d at 813 (Mo.banc 2013) (J. Teitelman,

dissenting on other grounds).

        Homosexual deviate sexual intercourse is no longer a sexual offense in Missouri. As

such, there is no logical existent reason to require Appellant to register on the sexual offender

registry. A similar situation presented itself in State ex rel. Kauble v. Hartenbach, 216 S.W.3d

                                                 10
 
158 (Mo.banc 2007). In Kauble, the petitioner had pled guilty under a statute that was later

found to be unconstitutional. Id. at 161. The conduct that constituted the basis for his guilty plea

was not criminal. Id. He sought to have his conviction overturned or vacated, and be allowed to

remove his name from the sexual offender registry. Id. The Missouri Supreme Court noted that

the only court with the power to vacate Mr. Kauble’s conviction was the circuit court, which had

lost jurisdiction over his case long ago. Id. However, the Court indicated that if he named the

proper parties as defendants, that is, the individuals who are in control of and maintain the sexual

offender registry, he could ask the Court for a declaratory judgment that his name be removed

from the sex offender registry. Id.2 The Kauble court had this to say about Mr. Kauble’s

situation, which is pertinent to Appellant’s here:

                      Kauble asserts that he is entitled to removal from the sex offender registry.
              Section 589.400.3(1) allows removal from the sex offender registry when “all
              offenses requiring registration are reversed, vacated or set aside.” In the current
              state of the law and this Court’s rules, Kauble’s plea of guilty remains a historical
              fact. Although there is no provision for vacating his guilty plea, there is no reason
              that the plea should have any current effect. Specifically, he should no longer be
              required to register as a sex offender.
                      Because there is no party to this proceeding that maintains the registry,
              this Court cannot grant Kauble’s requested relief ordering that his name be
              removed from the registry. If Kauble’s request to those who maintain the registry
              is denied, his remedy may be to bring an action against the parties responsible for
              maintaining the registry.

Id.

              As the Missouri Supreme Court pointed out in Kauble, there is no procedure available for

Appellant to have his 1989 guilty plea vacated, even though the law on which it was based was

deemed unconstitutional as criminalizing behavior which is legal. However, unlike in Kauble,

Appellant’s cause of action is properly postured and he has named the appropriate defendants

and therefore is entitled to the remedy which the Court indicated was proper for Mr. Kauble,
                                                            
2
 Mr. Kauble filed a petition for writ of mandamus asking the Court to compel the trial court judge to dismiss and set
aside his guilty plea and remove his name from the registry.

                                                               11
 
once appropriately requested.

                                   Respondents’ Arguments

          Respondents argue Appellant’s conduct on September 28, 1988 was criminal in other

aspects justifying his continued registration on the sexual offender registry. Respondents

maintain Detective Bayes was the victim of Appellant’s grabbing his groin without his consent,

as he avers in his affidavit dated April 29, 2014, and created for the purpose of Appellant’s

underlying declaratory judgment action.

          The offense to which Appellant pled guilty in 1989 was clearly a strict liability statute. It

included no language, as did other criminal statutes in effect at the time but under which

Appellant was not charged or convicted, requiring a victim’s lack of consent as an element of the

crime. Respondents cannot argue almost thirty years later that Appellant’s conduct on

September 28, 1988 was sexually criminal in ways other than how the prosecutor chose to charge

its illegality in 1989.

          It is within the prosecutor’s discretion to determine the statute or statutes under which the

prosecutor desires to proceed in charging a defendant with a crime. State v. Hendricks, 944

S.W.2d 208, 211 (Mo.banc 1997). The prosecutor’s determination will be based upon the

evidence, along with any other considerations that the prosecutor may properly want to take into

account. Id.

          Likewise, from the defendant’s perspective, for his guilty plea to be a voluntary and

intelligent admission that he committed the offense leveled against him by the prosecutor, the

defendant must receive real notice of the true nature of the charge against him, the first and most

universally recognized requirement of due process. Henderson v. Morgan, 426 U.S. 637, 644-45

(1976).



                                                   12
 
       The prosecutor’s choice in charging Appellant in 1988 cannot be revisited or revised

today. Appellant’s plea is now a part of history. Additionally, it nearly goes without saying that

Respondents also cannot bring forward newly manufactured evidence, i.e., Detective Bayes’s

2014 affidavit, to support a new theory of Appellant’s culpability.

        Moreover, Respondents’ characterization of Detective Bayes as a “victim” of sexual

contact by Appellant, and their contention that Detective Bayes did not give Appellant

permission to touch his groin, are disingenuous. Detective Bayes was participating in a sting

operation to rid the rest stop of homosexual behavior in 1988 and he deliberately sat in his car at

that location; got into Appellant’s car with him and talked for over ten minutes; and when

Appellant finally made a sexual overture to Detective Bayes, Detective Bayes revealed his true

identity as a police officer and placed Appellant under arrest for attempted homosexual deviate

intercourse. Such a course of events would be considered a success by Detective Bayes in his

undercover sting operation to rid the area of homosexual behavior that night in 1988, and to

characterize himself today as a victim of unwanted sexual touching by Appellant that night is

incongruous.

       Respondents also argue that Appellant’s conduct on September 28, 1988 was committed

in public, not in private, and as such does not deserve the protection of Lawrence. Respondents

are attempting to expand upon the alleged criminality of Appellant’s conduct on the night of

September 28, 1988, to add a public aspect to it that was not there when charged by the State,

considered by the court or pled guilty to by Appellant almost thirty years ago. As we determined

with regard to the ostensibly “nonconsensual” aspect to the actions of Appellant and Detective

Bayes in the front seat of Appellant’s car on the evening of September 28, 1988, the State chose

not to charge Appellant with a crime with a public aspect to it. Rather, it chose to charge



                                                13
 
Appellan
       nt with the sttrict liability crime of atttempted deviiate sexual inntercourse w
                                                                                      with a personn of

the same sex as set fo            on 566.090.1(3) RSMo 1978 (since repealed).  
                     orth in Sectio

        For the forego
                     oing reasonss, we consideer Appellantt’s petition ffor declaratory judgmentt well

taken. Respondents’
       R            motion for summary ju
                                        udgment shouuld not havee been granteed, and it waas

error for the trial cou
                      urt to do so. Appellant’s appeal is grranted for thee reasons staated specificcally

herein on
        nly.

                                              Conclusion
                                              C

        The
        T trial courrt’s judgmen
                               nt is reversed
                                            d and this cauuse is remannded for procceedings

consisten
        nt with this opinion.
                     o        App
                                pellant’s Pettition for Deeclaratory Judgment is orrdered to be

granted and
        a Respond
                dents are ord
                            dered to remo
                                        ove Appellannt’s name annd all other rregistration

informatiion from thee Missouri Seex Offender Registry.

 

                                                                                               
                                                 Sherri B. Suullivan, P.J.
                                                           
 
Mary K. Hoff, J., andd
Philip M. Hess, J., co
                     oncur.




                                                     14
 
