STATE OF MISSOURI,                                   )
                                                     )
        Plaintiff-Respondent,                        )
                                                     )
vs.                                                  )                 No. SD35696
                                                     )
MATTHEW JAMES LEE MCCORD,                            )                 Filed: April 15, 2020
                                                     )
        Defendant-Appellant.                         )

             APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                             Honorable David C. Jones, Circuit Judge

AFFIRMED

        Following a trial to the court, the trial court found that Matthew James Lee

McCord (“Defendant”), a registered sex offender, resided within 1,000 feet of Carver

Middle School between January 15 and April 21, 2017, in violation section 566.147,

RSMo 2016, as charged in Count II of a first amended information. The trial court

subsequently sentenced Defendant to four years in prison on that offense, but suspended

execution of that sentence and placed him on supervised probation for five years. 1


1
  The trial court also found Defendant guilty of two other offenses charged in Counts I and III of the
amended information involving Defendant’s knowing failure to register as a sex offender on separate
occasions, and imposed similar sentences for those offenses. Defendant does not appeal either of those
findings or sentences.


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Defendant appeals claiming in a single point that the rule of lenity requires reversal of the

guilty verdict on that offense because the distance between Carver Middle School and the

home where the trial court found Defendant resided was more than 1,000 feet if measured

from school building to home rather than from property line to property line. We

disagree, and affirm the trial court’s judgment.

                                Facts and Procedural Background

                                            Trial to the Court

         On Count II, the evidence at trial included the following. 2 Defendant had a prior

Missouri conviction for statutory rape in the second degree that required him to register

as a sex offender. The owner of a home located at 3241 West Glenwood Street in

Springfield told the court (1) she and her husband had known Defendant “for a lot of

years” as a “friend” of her daughter’s, (2) Defendant was “living” in her home from

January through April 2017, (3) Defendant shared a room in the home with a woman who

rented the room and later became Defendant’s wife, and (4) the home owner’s daughter is

the person who reported that Defendant was living at the home.

         The Greene County sex offender registrar testified that she has access to a

mapping system that is “accurate within 3 feet” and shows whether an address is within

1,000 feet of a school. “From property line to property line,” 3241 West Glenwood

Street was “approximately 839 feet” from Carver Middle School. The registrar indicated

that she was “sure, if extended to the actual school, it would be outside the thousand

feet.”


2
 In deciding this appeal, we consider the facts and reasonable inferences drawn from the facts in the light
most favorable to the trial court’s verdict and disregard contrary evidence and inferences, State v. White,
583 S.W.3d 442, 443-44 (Mo.App. S.D. 2019), but include other evidence here to give context for
Defendant’s point relied on.


                                                     2
        Defendant called two witnesses – his wife and his mother’s boyfriend – and chose

not to testify himself. Defendant’s wife testified that she and Defendant were married on

December 1, 2016, and, at that time, she was “living” on “Glenwood Street.”

Defendant’s wife paid “$75 a week” rent for a room at the home. Defendant did not

“move into” the home on Glenwood Street because the home was “too close to a school,”

but did “visit” her at the home “[t]hree to four times a week” though he never “stay[ed]

the night” at the home or slept there during the day. Defendant did not have a key to his

wife’s room at the home or to the home. “[B]etween January and April of 2017,”

Defendant “resid[ed]” “[u]nder his mom’s deck.” Defendant’s wife did not “recall” why

Defendant did not sleep inside his mother’s house. Defendant’s mother’s boyfriend

testified that between January and April 2017, Defendant “lived,” “stayed” in the

boyfriend’s “backyard.”

        The trial court subsequently found Defendant guilty of all three offenses charged

in the amended information, and, as to Count II, expressly stated, “I specifically find --

base that on the property lines. In reviewing the law, I believe that the legislature clearly

intends to protect children not only inside the building but also on the school grounds,

which is why they arrive at that 1,000 feet.”

        Following the preparation of a sentencing assessment report, the trial court

sentenced Defendant to four years on each count with the sentences to run consecutively,

suspended execution of the sentence, and placed Defendant on supervised probation for

five years. Defendant appeals from that judgment solely as to Count II. 3


3
 Subsequently, in November 2018, the trial court revoked Defendant’s probation, and amended
Defendant’s previously imposed sentence for which execution was suspended to four years on each count
with the sentences to run concurrently, and executed that sentence. The State has not, to our knowledge,
sought review of the amendment of the previously imposed sentence through an extraordinary writ or


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                                                Analysis

        In a single point, Defendant asserts that the trial court erred in finding him guilty

and sentencing him on Count II because:

        where the plain and ordinary meaning of “within one thousand feet of” a
        public school in section 566.147 is inherently ambiguous as to whether a
        person’s residence must be 1,000 feet from the property line of the school
        or the school building proper, the rule of lenity operates to give
        [Defendant] the most favorable construction of section 566.147 [-- that is,
        Defendant must not reside within one thousand feet of a public school]
        measured building-to-building . . . .

                   Standard of Review and Generally Applicable Principles

                “The proper interpretation of a statute is a question of law we
        review de novo.” State v. Spradling, 413 S.W.3d 670, 673 (Mo. App. S.D.
        2013). “The primary rule of statutory interpretation is to effectuate
        legislative intent through reference to the plain and ordinary meaning of
        the statutory language.” State v. Graham, 204 S.W.3d 655, 656 (Mo. banc
        2006).[ 4] “We particularly look to whether the language is clear and plain
        to a person of ordinary intelligence.” State v. Acevedo, 339 S.W.3d 612,
        617 (Mo. App. S.D. 2011). “We may not create an ambiguity where the
        words of a statute are plain.” State v. Downing, 359 S.W.3d 69, 71 (Mo.
        App. W.D. 2011). “Statutory construction should be reasonable and
        logical.” Id. Moreover, while the dictionary is frequently used as a tool in
        statutory interpretation, a dictionary definition is not the final source of
        guidance as to a word’s plain and ordinary meaning. State v. Payne, 250
        S.W.3d 815, 820 (Mo. App. W.D. 2008).

State v. White, 583 S.W.3d 442, 447 (Mo.App. S.D. 2019).

        The rule of lenity requires that an ambiguity in a penal statute (i.e., criminal

statutes and also civil statutes with penal consequences) be construed against the



otherwise, and we do not address the trial court’s authority to amend the previously imposed sentence. See
State ex rel. Poucher v. Vincent, 258 S.W.3d 62, 65-66 (Mo. banc 2008) (declining to address the
erroneous amendment of a previously imposed sentence because the State had not sought relief from the
erroneous amendment with the result the erroneous amendment was not before the court); and State ex rel.
Zahnd v. Shafer, 276 S.W.3d 368 (Mo.App. W.D. 2009) (writ of mandamus was an appropriate remedy to
obtain review of an erroneous amendment of a previously imposed sentence).
4
 See also section 1.090, RSMo (2016) (“Words and phrases shall be taken in their plain or ordinary and
usual sense, but technical words and phrases having a peculiar and appropriate meaning in law shall be
understood according to their technical import.”)


                                                    4
government and in favor of the person on whom a penalty is sought to be imposed.

Kersting v. Replogle, 492 S.W.3d 600, 605, 605-07 (Mo.App. W.D. 2016). By its terms

then, the rule of lenity does not apply where a statute is unambiguous. State v. White,

583 S.W.3d at 448. In addition, even when a statute is ambiguous, the rule of lenity is a

default rule and “applies to interpretation of statutes only if, after seizing everything from

which aid can be derived, [the court] can make no more than a guess as to what the

legislature intended.” State v. Liberty, 370 S.W.3d 537, 547 (Mo. banc 2012) (quoting

Fainter v. State, 174 S.W.3d 718, 721 (Mo.App. W.D. 2005)); Turner v. State, 245

S.W.3d 826, 828 (Mo. banc 2008) (default rule), superseded by statute on another

ground; see also State v. Ross, 479 S.W.3d 140, 142 n.3 (Mo.App. S.D. 2015) (last

resort). When a statute is potentially ambiguous, before applying the rule of lenity, “a

court is permitted to apply rules of statutory construction” including the rule that a

criminal statute should be read with common sense – i.e., “that courts shall understand

[words] as other people would.” Liberty, 370 S.W.3d at 549 & n.16, 541, 553, 555.

       A statute is ambiguous when its language is subject to more than one reasonable

interpretation. Id. at 548.

                                         Discussion

       We begin by noting that we believe Defendant’s point raises an issue of first

impression. Our Supreme Court declined to “address[] the issue of whether the 1,000

foot measurement is from property line to property line or building to building” under an

earlier version of section 566.147 in F.R. v. St. Charles County Sheriff’s Department,

301 S.W.3d 56, 64 n.13 (Mo. banc 2010), declined to follow on another ground by State

v. Wade, 421 S.W.3d 429, 434-35 (Mo. banc 2013), and we have been unable to locate




                                              5
any other Missouri judicial authority that addresses this issue under section 566.147 or

addresses comparable language in another statute with a purpose similar to section

566.147. We also have been unable to locate any non-Missouri judicial authority on this

issue that interprets statutory language that is sufficiently similar to section 566.147 to

provide us with meaningful guidance. 5

          At the time of the offense alleged in Count II, section 566.147.1, in relevant part,

provided that a sex offender “shall not reside within one thousand feet of any public

school as defined in section 160.011, any private school giving instruction in a grade or

grades not higher than the twelfth grade, or any child care facility . . ., where the school

or facility is in existence at the time the individual begins to reside at the location.”

Subsection 3 of the statute provided “[f]or purposes of this section, ‘resides’ means

sleeps in a residence, which may include more than one location and may be mobile or

transitory.” (emphasis in original).

          Section 160.011(7), RSMo 2016, provided “public school” “includes all

elementary and high schools operated at public expense,” and paragraphs (2) and (5) of

the statute defined “elementary school” as “a public school giving instruction in a grade

or grades not higher than the eighth grade;” and “high school” as “a public school giving

instruction in a grade or grades not lower than the ninth nor higher than the twelfth

grade.”


5
  The State refers us to Western Heights Independent School District No. I-41 v. Avalon Retirement
Centers, L.L.C., 37 P.3d 962 (Okla.Civ.App. 2001), for an example of an appellate court’s adoption of the
rule that a minimum distance required between locations should be measured from property line to property
line and not building to building. However, that decision involved a school district that successfully
enjoined the proposed change of an existing assisted living facility to a halfway house for Oklahoma
inmates. The applicable statute did not appear to have penal consequences and may have contained the
phrase “on the grounds of” certain department of corrections facilities in a subsequent subsection of the
statute. These differences from this appeal limit the persuasive value of that decision to our resolution of
this appeal.


                                                     6
       By its terms, section 566.147’s clear purpose was to reduce the opportunity for

sex offenders to victimize children by creating a one thousand foot buffer zone between

the location where a sex offender “reside[s]” and elementary and secondary “school[s]”

and “child care facilit[ies].” Section 566.147.1, RSMo 2016; see also F.R. v. St. Charles

County Sheriff’s Department, 301 S.W.3d at 58, 59 (section 566.147 “prohibits

convicted sex offenders from residing within 1,000 feet of any school or child-care

facilities”); and F.R. v. St. Charles County Sheriff’s Department, 301 S.W.3d at 66-68

(Russell, J., dissenting) (section 566.147 “ha[s] been enacted by the legislature

specifically to articulate conduct boundaries for child sex offenders that strive to prevent

sex offenders from victimizing children,” and authorities cited).

       In light of section 566.147’s statutory language and purpose, an appropriate

definition of “school” is “a place where instruction is given,” MERRIAM-WEBSTER INC.,

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2031 (1986), and an appropriate

definition of the “location” where a sex offender resides is “a place where something is or

might be located,” HOUGHTON MIFFLIN CO., THE AMERICAN HERITAGE DESK

DICTIONARY 570 (1981). With these definitions in mind and reading the words of section

566.147 with common sense and understanding the words as other people would, we

believe the only reasonable interpretation of the statute is that the distance between a

school or child care facility and the location where a sex offender resides should be

measured from property line to property line with the result that the rule of lenity does

not apply.

       We believe the common sense understanding of the word school in the context of

a place where instruction is given includes not only the physical buildings encompassed




                                              7
by the school, but also the grounds that adjoin the buildings and are available for

necessary outdoor instruction (e.g., physical education, school sports, marching band and

other large group extracurricular student activities) and outdoor student activities

necessary for efficient learning (e.g., recess or other breaks in classroom instruction, and

walking between buildings). Likewise, we believe the common sense understanding of

the location where a sex offender resides includes not only the structure (or, in this case,

room) in which the sex offender sleeps, but also any outbuilding or adjoining yard or

open space in which the sex offender might be present as a matter of right arising from

his residing at the location. In light of the legislature’s clear purpose to create a buffer

zone between designated places where children regularly are present and locations where

sex offenders reside, the property lines of the school and of the location where the sex

offender resides best define the places of concern to the legislature. The statutorily

prescribed minimum distance between the school and the location where a sex offender

may reside should be measured from property line to property line. 6

         If measured from property line to property line, Defendant does not dispute that

the evidence was sufficient to permit a reasonable fact-finder to find beyond a reasonable

doubt that 3241 West Glenwood Street was located within 1,000 feet of Carver Middle

School. Defendant’s point is denied, and the trial court’s judgment is affirmed.


Nancy Steffen Rahmeyer, J. – Opinion Author

Gary W. Lynch, P.J. – Concurs

William W. Francis, Jr., J. – Concurs

6
  Our conclusion also is consistent with a 2018 amendment to section 566.147 that requires the prescribed
minimum distance to be measured from the “edge of the offender’s property nearest” the school (or other
identified location) to the “nearest edge” of the school (or other identified location). Section 566.147.4,
RSMo Cum.Supp. 2019.


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