                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2007-CA-00100-SCT

JEFFERY A. STALLWORTH

v.

MISSISSIPPI DEPARTMENT OF PUBLIC
SAFETY


DATE OF JUDGMENT:                        11/17/2006
TRIAL JUDGE:                             HON. BOBBY BURT DELAUGHTER
COURT FROM WHICH APPEALED:               HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  ROBERT L. GIBBS
ATTORNEYS FOR APPELLEE:                  HAROLD EDWARD PIZZETTA, III
                                         R. STEVEN COLEMAN
NATURE OF THE CASE:                      CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                             AFFIRMED - 05/22/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


      EN BANC.

      RANDOLPH, JUSTICE, FOR THE COURT:

                     FACTS AND STATEMENT OF THE CASE

¶1.   In early 2002, Jeffery A. Stallworth (“Stallworth”), a resident of Mississippi, was

indicted on five separate sex offenses in Prince George’s County, Maryland. The indictment

charged Stallworth with one count of second-degree rape, one count of second-degree sex

offense, one count of second-degree assault, and two counts of fourth-degree sex offense.

The victim was an adult resident of Maryland.
¶2.    On March 4, 2002, Stallworth appeared before the Maryland circuit court and pleaded

guilty to one count of fourth-degree sex offense. The other counts on which Stallworth was

indicted were nolle prossed. The offense to which Stallworth pleaded guilty is codified in

Maryland Code Annotated, Criminal Law Section 3-308(b)(1). Under section 3-308(b)(1),

a person is guilty of sexual offense in the fourth degree if that person engages in “sexual

contact with another without the consent of the other.” “Sexual contact” is defined in

Maryland Criminal Code Annotated Section 3-301(f) as follows:

       (1) “Sexual contact,” as used in §§ 3-307 and 3-308 of this subtitle, means an
       intentional touching of the victim’s or actor’s genital, anal, or other intimate
       area for sexual arousal or gratification, or for the abuse of either party.

       (2) “Sexual contact” includes an act:
             (i) in which a part of an individual’s body, except the penis,
             mouth, or tongue, penetrates, however slightly, into another
             individual’s genital opening or anus; and

              (ii) that can reasonably be construed to be for sexual arousal or
              gratification, or for the abuse of either party.

       (3) “Sexual contact” does not include:

              (i) a common expression of familial or friendly affection; or

              (ii) an act for an accepted medical purpose.

¶3.    Under Maryland law, a fourth-degree sex offense is a misdemeanor and does not

require registration as a sex offender.

¶4.    On May 3, 2002, Stallworth again appeared before the Maryland circuit court and was

sentenced by the trial judge to serve one year in prison, but that sentence of incarceration was

suspended and Stallworth was placed on supervised probation for two years. It was further




                                               2
authorized by the Maryland court that Stallworth’s probation could be transferred to

Mississippi.

¶5.    After being sentenced by the Maryland court, Stallworth returned to Mississippi,

whereupon the Mississippi Department of Public Safety (“MDPS”) required him to register

as a sex offender pursuant to the Mississippi Sex Offender Registration Laws beginning with

Mississippi Code Annotated Section 45-33-21 (Rev. 2004). Stallworth registered with MDPS

on November 18, 2002, and as required by Mississippi Code Annotated Section 45-33-31,

Stallworth was required to re-register every ninety days. There is no claim that Stallworth

failed to re-register per Mississippi Code Annotated Section 45-33-31.

¶6.    On October 19, 2005, Stallworth filed a Complaint for Declaratory Judgment in the

Circuit Court of the First Judicial District of Hinds County. In his complaint, Stallworth

averred MDPS had “illegally required him to register.” Stallworth stated a fourth-degree

sexual offense in Maryland is not a registerable offense in the State of Mississippi and that

he should not be required to continue registration as a sex offender in this state.

¶7.    After commencing the action in Hinds County, Stallworth returned to the Maryland

trial court and appeared pro se on a Motion for Reconsideration of Sentence. Stallworth

stated to the Maryland court that he was there “to try to find a solution for is [sic] how not

be on that sex offender list in Mississippi.” The motion was granted by the trial court and the

docket entry for the proceedings dated November 4, 2005, states:

       The guilty finding and sentence dated 5-3-02 is hereby stricken. Further
       proceedings are deferred. Entry of judgment is stayed pursuant to Criminal
       Procedure Article 6-220 and placed on unsupervised probation for a period of
       one year.



                                              3
¶8.    Subsequent to Stallworth’s Motion for Reconsideration of Sentence being granted, on

November 17, 2005, MDPS filed its answer and propounded discovery requests to

Stallworth. Stallworth did not respond to discovery, but instead filed a Motion for Summary

Judgment and Motion for Stay of Discovery in Hinds County Circuit Court. No hearing was

held regarding the discovery motion.

¶9.    Stallworth’s Motion for Summary Judgment asserted that since his guilty verdict had

been stricken in Maryland, there was no conviction upon which Mississippi could base a

registration requirement. Stallworth further argued that even if the guilty verdict had not been

stricken, the offense to which Stallworth pleaded guilty is not a registerable offense in

Mississippi. Stallworth argued that a registerable offense in Mississippi required the element

of penetration, to which Stallworth argued he did not plead guilty in Maryland. However,

Stallworth’s argument is directly contrary to his own sworn testimony, which will be

discussed infra.

¶10.   In response, MDPS filed its own Motion for Summary Judgment and Opposition to

Plaintiff’s Motion for Summary Judgment. MDPS submitted that under Mississippi Code

Annotated 45-33-23(a), a registerable offense includes a determination of guilt via a guilty

plea “regardless of whether adjudication is withheld.” MDPS further asserted Maryland’s

fourth-degree sexual offense is comparable to Mississippi’s offenses of sexual battery or

attempted sexual battery, which require registration in Mississippi.

¶11.   On May 9, 2006, MDPS filed a Submission of New Evidence in Support of its Motion

for Summary Judgment and in Opposition to Plaintiff’s Motion for Summary Judgment. This

new evidence included sworn testimony from Stallworth taken from a related civil

                                               4
proceeding.1 On May 10, 2006, Stallworth filed a Motion to Strike Defendant’s Submission

of New Evidence. On May 12, 2006, a hearing was held on both motions for summary

judgment in the Circuit Court for the First Judicial District of Hinds County. The trial judge

took both motions under advisement and on November 17, 2006, the trial judge entered a

well-reasoned and thorough nine-page Memorandum Opinion and Order. In his order, the

trial judge held Stallworth’s guilty plea “regardless of adjudication of guilt being withheld,

remains intact, and therefore falls within the plain reading of the statutory definition of

‘conviction’ set forth in Mississippi’s Act. (Section 45-33-23).” The trial judge further found

the sex offender registration statutes are remedial in nature and should be liberally construed.

As such, the trial judge found that in Maryland, Stallworth stood convicted of

       penetrating, without consent, another person’s genital, anal or other intimate
       area with part of his body, other than his penis, mouth, or tongue. While a
       misdemeanor in Maryland, such behavior would constitute the felony of sexual
       battery in Mississippi, a registerable offense sex offense under our Megan’s
       Law. This finding and the defendant department’s construction of the Act is
       not repugnant to either its plain meaning or best reading. The Court, therefore,
       gives great deference to the department’s construction.

¶12.   Accordingly, the trial court denied Stallworth’s motion for summary judgment and

granted MDPS’s summary judgment motion, thus requiring Stallworth to continue to register.

The trial court did not rule on the Motion to Submit New Evidence filed by MDPS and the

Motion to Strike New Evidence filed by Stallworth, but it is clear from the trial court’s

opinion that this evidence was considered.

¶13.   Stallworth now appeals to this Court and presents the following issues:


       1
       The related civil proceeding in this matter: Mississippi United Methodist Conference
v. Brown, 911 So. 2d 478 (Miss. 2005).

                                               5
       I.     Whether the lower court erred in determining that Stallworth had a
              conviction from Maryland.
       II.    Whether the lower court erred in granting MDPS’s Motion for
              Summary Judgment which required Stallworth to continue to register
              as a sex offender.

                                STANDARD OF REVIEW

¶14. “We employ the de novo standard in reviewing a trial court's grant of summary

judgment. The moving party shall be granted judgment ‘if the pleadings, depositions,

answers to interrogatories and admissions on file, together with affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.’” Dearman v. Christian, 967 So. 2d 636, 638-639 (Miss. 2007)

(citing M.R.C.P. 56(c)) (internal citations omitted).

                                         ANALYSIS

I.     Whether the lower court erred in determining that Stallworth had a conviction
       from Maryland.

¶15.   In 2002, Stallworth pleaded guilty to fourth-degree sexual offense in Maryland, and

on November 4, 2005, Stallworth again appeared in the Maryland circuit court to ask for

reconsideration of his sentence. The trial court granted Stallworth’s motion for

reconsideration, stating, “It’s a motion for reconsideration of sentence, and I’m going to grant

it, and I’m going to effect the finding of guilt and enter probation before judgment and it will

be unsupervised probation. . . .”

¶16.   “Conviction” has a specific meaning under the Mississippi Sex Offender Registration

Laws. Mississippi Code Annotated Section 45-33-23(a) (Rev. 2004) provides:




                                               6
       “Conviction” shall mean that, regarding the person’s offense, there has been
       a determination or judgment of guilt as a result of a trial or the entry of a plea
       of guilty or nolo contendere regardless of whether adjudication is withheld.

According to the plain meaning of our statute, although the Maryland court modified its

original ruling in contradiction to the fact that Stallworth had already completed his sentence,

does not afford Stallworth relief. It is the entry of the plea which satisfies “conviction” under

the Mississippi Act.

¶17.   This Court finds this issue to be without merit, as Stallworth stands “convicted” under

Maryland’s fourth-degree sexual offense statute.

II.    Whether the lower court erred in granting MDPS’s Motion for Summary
       Judgment which required Stallworth to continue to register as a sex offender.

¶18.   In an effort to avoid the non-criminal consequences of his behavior, Stallworth filed

a Complaint for Declaratory Judgment, as opposed to a Petition for Relief from Duty to

Register. Mississippi Code Annotated Section 45-33-47 establishes various requirements for

relief from the duty to register.2 See, e.g, Miss. Code Ann. § 45-33-47(2)(b)(ix)(Supp. 2007)

(If the offender has been convicted of one (1) of the following offenses, the offender is

subject to lifetime registration and shall not be relieved of the duty to register: (ix) Any

conviction for violation of a similar law of another jurisdiction or designation as a sexual

predator in another jurisdiction). See also Miss. Code Ann. § 45-33-47(3) (Rev. 2007), ([t]he

offender will be required to continue registration for any sex-offense conviction unless the

conviction is set aside in any post-conviction proceeding, the offender receives a pardon, or




       2
        The failure of Stallworth to bring this action under the statute was not raised as an
issue by the state.

                                               7
the charge is dismissed. Upon submission of the appropriate documentation to the department

of one (1) of these occurrences, registration will continue).

¶19.   In support of its motion for summary judgment, the state filed Stallworth’s deposition

testimony from a civil action based on the same underlying facts. Mississippi Code

Annotated Section 45-33-47 establishes the standard of proof and factors to be considered

by the trial court on a Petition for Relief from Duty to Register.

       In determining whether to release an offender from the obligation to register,
       the court shall consider the nature of the registrable offense committed and the
       criminal and relevant noncriminal behavior of the petitioner both before and
       after conviction. The court may relieve the offender of the duty to register only
       if the petitioner shows, by clear and convincing evidence, that the registrant
       properly maintained his registration as required by law and that future
       registration of the petitioner will not serve the purposes of this chapter and the
       court is otherwise satisfied that the petitioner is not a current or potential threat
       to public safety. The district attorney in the circuit in which the petition is filed
       must be given notice of the petition at least three (3) weeks before the hearing
       on the matter. The district attorney may present evidence in opposition to the
       requested relief or may otherwise demonstrate the reasons why the petition
       should be denied. If the court denies the petition, the petitioner may not again
       petition the court for relief until one (1) year has elapsed unless the court
       orders otherwise in its order of denial of relief.

Miss. Code Ann. § 45-33-47(3) (Supp. 2007) (emphasis added).

¶20.   Following the statutory mandate, the lower court was presented with the facts

surrounding Stallworth’s crime. It is clear from the trial court’s opinion that the trial judge

considered Stallworth’s sworn testimony from the related civil proceeding. That testimony

provides compelling evidence which cannot be ignored.

¶21.   Pertinent portions of Stallworth’s deposition taken on February 5 and 6, 2003, reveal

the following:

       ATTORNEY:              Had [the victim] asked you to come into the bed?

                                                8
       STALLWORTH: She had not. . . . I put my hands in her pajamas and I
                   started to - I guess massaging her clitoris. . . .

       STALLWORTH: I kept. . . my finger on her clitoris for I would suspect
                   about more than ten minutes. . . .

       ATTORNEY:               Are you having vaginal intercourse or anal intercourse?

       STALLWORTH: Vaginal. . .

       ATTORNEY:               You’re saying that you would have vaginal intercourse
                               and then oral, and go back and forth?

       STALLWORTH: Right. . . .

       STALLWORTH: And I just turned over and laid on the bed and she pulled
                   the cover and said, “What was that? What were you
                   doing?” And she said, “That was not consensual. . . .”

¶22.   Mississippi Code Annotated Section 97-3-95(1)(a) (Rev. 2006) states, “A person is

guilty of sexual battery if he or she engages in sexual penetration with (a) another person

without his or her consent.”

¶23.   Even if one were to ignore Stallworth’s sworn testimony in the civil proceeding,

Stallworth’s actions, which he admitted in the Maryland plea colloquy, clearly satisfy the

definition of attempted sexual battery, a registerable offense in this state pursuant to

Mississippi Code Annotated Section 45-33-25(1).

¶24.   Mississippi Code Annotated Section 97-1-7 (emphasis added) states,

       Every person who shall design and endeavor to commit an offense, and shall
       do any overt act toward the commission thereof, but shall fail therein, or shall
       be prevented from committing the same, on conviction thereof, shall, where
       no provision is made by law for the punishment of such offense, be punished
       as follows: If the offense attempted to be committed be capital, such offense
       shall be punished by imprisonment in the penitentiary not exceeding ten years;
       if the offense attempted be punishable by imprisonment in the penitentiary, or
       by fine and imprisonment in the county jail, then the attempt to commit such

                                               9
       offense shall be punished for a period or for an amount not greater than is
       prescribed for the actual commission of the offense so attempted.

¶25.   This Court has held, “In general, Section 97-1-7 (1972) requires a showing of three

elements: (1) an attempt to commit a particular crime, (2) a direct ineffectual act done toward

its commission and (3) the failure to consummate its commission.” McGowan v. State, 541

So. 2d 1027, 1030 (Miss. 1989) (citations omitted).

¶26.   Stallworth admitted in his plea that he placed his hands on the victim’s vagina without

her consent. We are constrained to understand how a person placing his hands on the genitals

of another person without her consent would not be an attempt to commit the crime of sexual

battery and a direct ineffectual act toward its commission. Therefore, even in the absence of

Stallworth’s deposition testimony, Stallworth’s conduct and plea satisfy the elements of

attempted sexual battery in Mississippi, a registerable offense in this State.

¶27.   We find no error in the trial court’s grant of summary judgment in favor of MDPS,

which requires Stallworth to continue to register.

                                       CONCLUSION

¶28.   Requiring Jeffery Stallworth to register fulfills the spirit and intent of the Legislature

in creating the Mississippi Sex Offender Registration Laws. To do otherwise would be an

affront to and an intrusion upon the rights of the general public, whom the law seeks to

protect. The pertinent portion of Mississippi Code Annotated Section 45-33-21 states,

       Persons found to have committed a sex offense have a reduced expectation of
       privacy because of the public’s interest in safety and in the effective operation
       of government. In balancing offenders’ due process and other rights, and the
       interests of public security, the Legislature finds that releasing such
       information about criminal sex offenders to the general public will further the



                                              10
       primary governmental interest of protecting vulnerable populations and, in
       some instances the public, from potential harm.

¶29.   It is not the duty or within the power of this Court to divine the State of Maryland’s

intent in allowing Stallworth to plead guilty to a non-registerable offense in Maryland after

being charged with multiple sexual offenses. It is our calling to interpret the laws of this state

passed by our Legislature to protect the citizens of this state. The Mississippi Sex Offender

Registration Laws are designed to warn the public of persons who commit sex offenses.

¶30.   The facts surrounding Stallworth’s conduct and crime prove that he has committed

a registerable offense. Stallworth has not satisfied the requirements, nor has he met the

burden of proof which would relieve him of his continuing duty to register. For the reasons

stated herein, we affirm the ruling of the trial court and Stallworth shall not be relieved of his

duty to register.

¶31.   AFFIRMED.

    SMITH, C.J., EASLEY, DICKINSON AND LAMAR, JJ., CONCUR.
CARLSON, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
WALLER AND DIAZ, P.JJ. GRAVES, J., NOT PARTICIPATING.


       CARLSON, JUSTICE, DISSENTING:

¶32.   While I agree with my learned colleagues in the majority that Stallworth stands

“convicted” in Maryland of fourth-degree sexual offense, I respectfully disagree that

Maryland’s fourth-degree sexual offense is a registrable offense in Mississippi. In my

opinion, the majority fails to recognize the critical issue presented to this Court. While the

majority briefly discusses why it believes Stallworth’s Maryland conviction is a registrable

offense in Mississippi, most of the majority opinion focuses on Stallworth’s statutory duty

                                               11
to continue to register as a sex offender and why he should not be permitted under the statute

to be released from this duty to continue to register. Stallworth is not asserting that he

committed a registrable offense and that he should now be relieved from re-registration as

a sex offender. Instead, Stallworth is asserting that fourth-degree sexual offense in Maryland

is not a registrable offense in Mississippi and that he thus should have never been required

to register in the first place. Therefore, I will address the issue as I see it presented to this

Court.

¶33.     The misdemeanor offense to which Stallworth pleaded guilty is defined in Maryland

Criminal Code Annotated Section 3-308. Under section 3-308(b)(1), a person is guilty of

sexual offense in the fourth degree if that person engages in “sexual contact with another

without the consent of the other.” “Sexual contact” is defined in Maryland Criminal Code

Annotated Section 3-301(f):

         (1) “Sexual contact”, as used in §§ 3-307 and 3-308 of this subtitle, means an
         intentional touching of the victim’s or actor’s genital, anal, or other intimate
         area for sexual arousal or gratification, or for the abuse of either party.

         (2) “Sexual contact” includes an act:
               (i) in which a part of an individual’s body, except the penis,
               mouth, or tongue, penetrates, however slightly, into another
               individual’s genital opening or anus; and

                (ii) that can reasonably be construed to be for sexual arousal or
                gratification, or for the abuse of either party.

         (3) “Sexual contact” does not include:

                (i) a common expression of familial or friendly affection; or

                (ii) an act for an accepted medical purpose.




                                               12
¶34.   Upon Stallworth’s return to the State of Mississippi, MDPS required Stallworth to

register as a sex offender pursuant to Mississippi Code Annotated Section 45-33-25(1) (Rev.

2004), which states in pertinent part:

       Any person residing in this state who has been convicted of any sex offense .
       . . shall register with the Mississippi Department of Public Safety.
       Registration shall not be required for an offense that is not a registrable sex
       offense.


(Emphasis added). According to Mississippi Code Annotated Section 45-33-23(g) (Rev.

2004), the following are registrable sex offenses for which MDPS is requiring Stallworth to

register:

       (iv) Section 97-3-95 relating to sexual battery . . .
       (xi) Section 97-1-7 relating to attempt to commit any of the above-referenced
       offenses;

       (xiii) Any other offense resulting in a conviction in another jurisdiction,
       whether state, federal or military, which, if committed in this state, would be
       deemed to be such a crime without regard to its designation elsewhere. . . .

¶35.   Stallworth argues that fourth-degree sex offense in Maryland is not a registrable sex

offense in Mississippi pursuant to Mississippi Code Annotated Section 45-33-25(1).

Following this assertion to a logical conclusion, Stallworth opines that since section 45-33-

25(1) does not require him to register has a sex offender, MDPS’s actions in requiring him

to register are illegal.

¶36.   On the other hand, MDPS contends that Stallworth’s conviction of fourth-degree sex

offense in Maryland does fall within Mississippi Code Annotated Section 45-33-25(1). In

particular, MDPS claims that Stallworth’s conviction in Maryland equates to sexual battery




                                             13
in Mississippi. Mississippi Code Annotated Section 97-3-95 (Rev. 2006) defines sexual

battery as follows:

       (1) A person is guilty of sexual battery if he or she engages in sexual
       penetration with:
              (a) another person without his or her consent.

Mississippi Code Annotated Section 97-3-97(a) (Rev. 2006) states:

       Sexual penetration includes cunnilingus, fellatio, buggery or pederasty, any
       penetration of the genital or anal openings of another person’s body by any
       part of a person’s body, and insertion of any object into the genital or anal
       openings of another person’s body.

¶37.   Stallworth argues that the difference in the elements of Maryland’s sex offense in the

fourth-degree statute and Mississippi’s sexual-battery statute preclude the MDPS from being

able to require him to register as a sex offender, since our sexual-battery statute, Mississippi

Code Annotated Section 97-3-95, requires sexual penetration as opposed to mere sexual

contact, which is all that is required under Maryland’s fourth-degree sex offense statute.

¶38.   The majority finds that Stallworth was found guilty of penetrating his victim in

Maryland based upon the Mississippi circuit court’s Memorandum Opinion and Order which

found that in Maryland, Stallworth stood convicted of

       penetrating, without consent, another person’s genital, anal or other intimate
       area with part of his body, other than his penis, mouth or tongue.

The Maryland court did NOT find Stallworth guilty of penetrating his victim. In fact, it

found only that Stallworth placed his hands on the victim’s vaginal area.

¶39.   Furthermore, the majority finds that Stallworth penetrated his victim based on sworn

deposition testimony from Stallworth in a subsequent civil proceeding. In my opinion, this

analysis is flawed for two reasons. First, Mississippi Code Annotated Section 45-33-47, the


                                              14
statute used by the majority, establishes the standard of proof and factors to be considered

by the trial court on a Petition for Relief from Duty to Register. Clearly, a person should not

be required to petition for relief from the duty to register if that person has never committed

a registrable offense, which is precisely Stallworth’s claim. While the trial court, when

addressing a petition for relief from duty to register, “shall consider the nature of the

registrable offense committed and the criminal and relevant noncriminal behavior of the

petitioner both before and after the conviction,” such matters as a matter of law should not

be considered when determining if the petitioner has committed a registrable offense which

thus requires registration under the statute. With this having been said, I submit that

Stallworth’s civil deposition testimony should have been stricken by the trial court and that

neither the trial court, nor this Court on appeal, should consider this testimony in reaching

the issue before us today.

¶40.   Second, the majority states “[t]he trial court did not rule on the Motion to Submit New

Evidence filed by MDPS and the Motion to Strike New Evidence filed by Stallworth, but it

is clear from the trial court’s opinion that this evidence was considered.” Again, the majority

assumes that it is clear the trial court considered the deposition testimony based upon the

circuit court’s Memorandum Opinion and Order which found that in Maryland, Stallworth

stood convicted of:

       penetrating, without consent, another person’s genital, anal or other intimate
       area with part of his body, other than his penis, mouth or tongue.

As I pointed out earlier, that is not what the Maryland court found. In fact, the Maryland

court had no evidence before it that suggested Stallworth penetrated his victim.



                                              15
¶41.   I recognize the “essential elements” test is not a hard-and-fast rule. In fact, I look not

only to the exact elements of the statutes for both Maryland’s fourth-degree sex offense

statute and Mississippi’s sexual-battery statute, but I find it permissible to review the factual

basis for Stallworth’s guilty plea. At the guilty plea hearing in Maryland, Judge Shepherd

asked for the factual basis for Stallworth’s plea of guilty. The transcript of those proceedings

reflects the following:

       THE COURT:            Before I can accept your plea of guilty to the third count,
                             fourth degree sexual offense, I need to hear the factual
                             basis of it. I will ask the State to recite the evidence.

       MS. MASON:            Thank you, Your Honor. Had the State gone to trial, the
                             State would have proven beyond a reasonable doubt that
                             on or about August 15th, 2001, that the defendant,
                             Jeffery A. Stallworth, seated before Your Honor today,
                             had sexual contact with the victim,[3 ] . . . . who is present
                             in the courtroom; that the sexual contact was made
                             without the consent and against the will of [the victim];
                             and those events occurred in Prince George’s County,
                             Maryland.

       THE COURT:            Specifically what sexual contact?

       MS. MASON:            He did place his hands on her vaginal area.

¶42.   Taken together, I cannot conclude that Stallworth would have been found guilty of

sexual battery if charged in Mississippi.        This state’s sexual-battery statute requires

penetration, however slight, as an essential element; however, Stallworth was not found

guilty in Maryland of sexually penetrating the victim. In order to be found guilty of fourth-

degree sexual offense in Maryland, sexual contact must occur without consent. While sexual



       3
      The adult victim in today’s case is the same victim identified in Mississippi United
Methodist Conference v. Brown, 911 So. 2d 478, 480 (Miss. 2005).

                                               16
contact may include “an act: (i) in which a part of an individual’s body, except the penis,

mouth, or tongue, penetrates, however slightly, into another individual’s genital opening or

anus,” sexual contact does not necessarily have to include penetration; whereas, Mississippi’s

sexual-battery statute, without exception, requires some form of penetration of the victim.

As such, Mississippi’s sexual-battery statute is more synonymous with the definition of a

“sexual act” in Maryland as opposed to “sexual contact.” A “sexual act” is defined in

Maryland Criminal Code Annotated Section 3-301(e) as:

       (1) “Sexual act” means any of the following acts, regardless of whether semen
       is emitted:

              (i) analingus;

              (ii) cunnilingus;

              (iii) fellatio;

              (iv) anal intercourse, including penetration, however slightly, of
              the anus; or

              (v) an act:

                      1. in which an object penetrates, however slightly,
                      into another individual’s genital opening or anus;
                      and

                      2. that can reasonably be construed to be for
                      sexual arousal or gratification, or for the abuse of
                      either party.

       (2) “Sexual act” does not include:

              (i) vaginal intercourse; or

              (ii) an act in which an object penetrates an individual’s genital
              opening or anus for an accepted medical purpose.



                                              17
¶43.   “Sexual penetration” is defined in Mississippi Code Annotated Section 97-3-97(a)

(Rev. 2006) as including “cunnilingus, fellatio, buggery or pederasty, any penetration of the

genital or anal openings of another person’s body by any part of a person’s body, and

insertion of any object into the genital or anal openings of another person’s body.”

Therefore, only if Stallworth was convicted of a sexual offense in Maryland which required

a “sexual act” on his part would he be required to register as a sex offender in Mississippi for

committing an “offense resulting in a conviction in another jurisdiction . . . [which] if

committed in this state, would be deemed to be such a crime without regard to its designation

elsewhere;” i.e., sexual battery. Miss. Code Ann. § 45-33-23 (xiii) (Rev. 2004).

¶44.   Thus, looking at the specific facts revealed at Stallworth’s plea hearing, I find of

significant import the comments of the Maryland prosecutor when she stated that “[h]ad the

State gone to trial, the State would have proven beyond a reasonable doubt that . . .

[Stallworth] . . . had sexual contact with the victim . . . that the sexual contact was made

without the consent and against the will of [the victim]” and that the specific sexual contact

was that “[Stallworth] did place his hands on her vaginal area.” The Maryland prosecutor

never stated Stallworth penetrated the victim. Again, the applicable Maryland statute states

in pertinent part that “sexual contact . . . means an intentional touching of the victim’s or

actor’s genital, anal, or other intimate area for sexual arousal or gratification, or for the

abuse of either party. Md. Crim. Code Ann. § 3-301(f)(1) (emphasis added). While section

3-301(f)(2) states that “‘[s]exual contact” does include acts . . . (i) in which a part of an

individual’s body, except the penis, mouth, or tongue, penetrates, however slightly, into

another individual’s genital opening or anus; and (ii) that can reasonably be construed to be


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for sexual arousal or gratification, or for the abuse of either party,’” section 3-301(f)(2)(I)-(ii)

is not all-inclusive as to specifying what acts may constitute sexual contact. This fact is

obvious when one reads section 3-301(f)(3), which states “‘[s]exual contact” does not include

(i) a common expression of familial or friendly affection; or (ii) an act for an accepted

medical purpose. Obviously, if all sexual contact under the Maryland statutes required some

type of penetration of the victim, there would have been no need for the Maryland legislature

to expressly except from the definition of sexual contact “a common expression of familial

or friendly affection.”

¶45.   Furthermore, the majority argues that even without evidence of penetration, Stallworth

would still be required to register as a sex offender in Mississippi based on his purported

attempt to commit sexual battery. However, on this point I note that:

       [t]he attempt statute requires that, before one may be convicted of attempt, he
       “shall fail therein, or shall be prevented from committing the same.” The
       gravamen of this offense of attempt is that the accused have done an overt act
       toward sexual penetration “and be prevented from its commission.” State v.
       Lindsey, 202 Miss. 896, 899, 32 So. 2d 876, 877 (1947).

West v. State, 437 So. 2d 1212, 1214 (Miss. 1983). In addition, “[u]nder our attempt statute

prevention or frustration must have resulted from extraneous causes.” Id. (citing Bucklew

v. State, 206 So. 2d 200, 202 (Miss. 1968); c.f. Murray v. State, 403 So. 2d 149, 152 (Miss.

1981)). Thus, I disagree with the majority’s argument that “[e]ven if one were to ignore

Stallworth’s sworn testimony in the civil proceeding, Stallworth’s actions, which he

admitted in the Maryland plea colloquy, clearly satisfy the definition of attempted sexual

battery, a registrable offense in this state pursuant to Mississippi Code Annotated Section 45-

33-25(1) (Rev. 2004).” Stallworth’s conduct and the facts presented at the plea hearing

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clearly do not satisfy the elements of attempted sexual battery. The prosecution failed to

provide specific evidence that Stallworth attempted to penetrate the victim, and failed only

because of extraneous causes.

¶46.   I find error in the trial court’s grant of summary judgment in favor of MDPS inasmuch

as MDPS’ requirement that Stallworth register is not supported by substantial evidence.

Dep't of Marine Res. v. Brown, 903 So. 2d 675, 677 (Miss. 2005). There is no evidence

whatsoever which legally can be considered by this Court to support the determination that

Stallworth penetrated the victim while committing the act of fourth-degree sex offense for

which he was convicted in the state of Maryland. As explained supra, Stallworth’s sworn

deposition testimony in a civil case regarding his conduct with the victim in this case was not

considered by the Maryland court; therefore, this deposition testimony likewise should not

be considered by this Court in today’s appeal.

¶47.   I find that this issue raised by Stallworth has merit in that Stallworth’s conviction

under Maryland’s fourth-degree sex offense statute, Maryland Criminal Code Annotated

Section 3-308, defined as “sexual contact with another without the consent of the other,”

when read in conjunction with Maryland Criminal Code Annotated Section 3-301(f)(1)(2)(3),

is not a registrable sex offense under Mississippi’s Sex Offenders Registration Law.

¶48.   While I recognize that the Mississippi Sex Offenders Registration Law is a remedial

statute with an intended deterrent effect, thus requiring this Court liberally to construe the

statutory provisions in favor of the Mississippi Department of Public Safety, I am constrained

as a matter of law to find that the difference in the elements of the Maryland offense for

which Stallworth was convicted and Mississippi’s sexual-battery statute, coupled with the


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record in this case, brings me to the inescapable conclusion that the act of which Stallworth

was convicted under Maryland’s fourth-degree sex offense statute is not a registrable sex

offense under the Mississippi Sex Offenders Registration Law. (See Mississippi Code

Annotated Sections 45-33-21, et seq. (Rev. 2004)).

¶49.   I have no sympathy for Jeffery A. Stallworth, who “may well be deserving of

society’s condemnation.” See May v. State, 460 So. 2d 778, 785 (Miss. 1984). While I in no

way condone Stallworth’s conduct toward the victim, the issue before us is not whether what

Stallworth did was offensive, or immoral, or even criminal, but instead, the issue before us

is one of application of a clear legislative enactment. We are constitutionally mandated to

apply the language of the statute as written, and not legislate from the bench. “[I]f we

interpret a statute contrary to the intent or will of the Legislature, that body has the absolute

authority to change the statute to suit its will.” Bd. of Supervisors v. Hattiesburg Coca-Cola

Bottling Co., 448 So. 2d 917, 924 (Miss. 1984) (Hawkins, J., concurring in part and

dissenting in part). For the reasons stated, I would reverse the summary judgment entered

in favor of the Mississippi Department of Public Safety by the Circuit Court for the First

Judicial District of Hinds County, and render judgment here in favor of Jeffery A. Stallworth.

¶50.   Because the majority holds otherwise, and for the reasons stated, I respectfully dissent.

       WALLER AND DIAZ, P.JJ., JOIN THIS OPINION.




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