                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2019-CA-00145-SCT

MISSISSIPPI DEPARTMENT OF PUBLIC
SAFETY

v.

JUSTIN HERRINGTON


DATE OF JUDGMENT:                        12/10/2018
TRIAL JUDGE:                             HON. PRENTISS GREENE HARRELL
TRIAL COURT ATTORNEYS:                   THOMAS MICHAEL REED
                                         LINDSAY GREEN WATTS
                                         JOHN MICHAEL HORAN
COURT FROM WHICH APPEALED:               LAMAR COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  LORA ELIZABETH HUNTER
ATTORNEY FOR APPELLEE:                   MICHAEL ADELMAN
NATURE OF THE CASE:                      CIVIL - CRIMINAL - FELONY
DISPOSITION:                             REVERSED AND REMANDED - 02/20/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


      BEFORE KING, P.J., CHAMBERLIN AND ISHEE, JJ.

      KING, PRESIDING JUSTICE, FOR THE COURT:

¶1.   Justin Herrington, a law-enforcement officer with the Columbia Police Department,

was convicted of violating Mississippi Code Section 97-3-104, which prohibits sexual

activity between a law-enforcement employee and an offender on correctional supervision.

The trial court ordered Herrington to register as a sex offender under Mississippi Code

Sections 45-33-21 through 45-33-51. The trial court then amended its order and removed

Herrington’s registration requirement. The Mississippi Department of Public Safety (MDPS)
appealed and argued that the trial court erred by removing Herrington’s requirement to

register as a sex offender. We agree and reverse the trial court’s order dispensing with

Herrington’s registration requirement.

                        FACTS AND PROCEDURAL HISTORY

¶2.    The facts in this case are undisputed. On August 9, 2016, Herrington was convicted

of the crime of sexual activity between certain individuals and offenders incarcerated in

correctional facilities or on correctional supervision in violation of Mississippi Code Section

97-3-104. Mississippi Code Section 97-3-104 provides that it is unlawful for an employee

of a law enforcement agency

       to engage in any sexual penetration . . . or other sexual act with any offender,
       with the offender’s consent, who is incarcerated at any jail or any state, county
       or private correctional facility or who is serving on probation, parole, earned-
       release supervision, post-release supervision, earned probation, intensive
       supervision or any other form of correctional supervision.

Miss. Code Ann. § 97-3-104(1) (Rev. 2014).

¶3.    The trial court sentenced Herrington to five years in the custody of the Mississippi

Department of Corrections, with two years to serve. The trial court further ordered “that the

defendant is to register as a sex offender with the appropriate agency as provided by Sections

45-33-21 through 45-33-51 of the Mississippi Code . . . .” Mississippi Code Section 45-33-

23(h)(xvii) defines a “sex offense” or “registrable offense” as an offense under “Section

97-3-104 relating to the crime of sexual activity between law enforcement, correctional or

custodial personnel and prisoners.” Miss. Code Ann. § 45-33-23(h)(xvii) (Supp. 2019).


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¶4.    Herrington later filed a motion to clarify the previous judgment. He argued that, in a

companion case involving a defendant “identically positioned” as Herrington, the trial court

sentenced that defendant to five years of nonreporting probation after the defendant entered

a guilty plea. Both cases involved consensual sexual contact with the same probationer.

Because the victim in Herrington’s case was a probationer and not a prisoner or inmate in any

correctional institution, Herrington contended that the judgment in his case should be

clarified, amended, or corrected to dispense with his requirement to register as a sex

offender.

¶5.    On December 10, 2018, the trial court granted the motion and ordered that the

judgment be clarified to dispense with Herrington’s requirement to register as a sex offender

under Section 45-33-23(h)(xvii). The trial court reasoned that, before 2005, under Section

97-3-104, it was unlawful for a Mississippi Department of Corrections employee to engage

in sexual penetration with any offender who is incarcerated at any jail or any state, county

or private correctional facility. Miss. Code Ann. § 97-3-104. An amendment in 2005

expanded the statute to include as unlawful sexual relations with an offender serving on

probation. Miss. Code Ann. § 97-3-104. However, the legislature did not amend Section 45-

33-23(h)(xvii), which defined a registrable sex offense as sexual activity between law

enforcement and prisoners. Because a probationer was not a prisoner or inmate, the trial court

found that the statute did not apply to Herrington’s case.




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¶6.    On January 7, 2019, the State of Mississippi, through the MDPS, appealed the trial

court’s ruling.1 The MDPS filed a motion to stay on March 8, 2019, seeking a stay of the trial

court’s order alleviating Herrington of his duty to register as a sex offender. The trial court

denied the motion and ordered the MDPS to promptly remove Herrington’s name from the

sex-offender registry.

¶7.    The MDPS now argues that the trial court erred by dispensing with Herrington’s sex-

offender registration requirement. It “seeks clarification and guidance as to the proper

application of Section 45-33-23(h)(xvii) as to the registration requirement for a conviction

for engaging in sexual penetration or other sexual acts between law enforcement and,

specifically, a probationer.”

                                        ANALYSIS

¶8.    The issue in this case is whether the term “prisoners” as stated in Mississippi Code

Section 45-33-23(h)(xvii) excludes as a registrable offense a conviction involving a law-

enforcement officer who engages in sexual activity with a probationer.

¶9.    Section 97-3-104(1) declares unlawful sexual penetration or other sexual acts between

a law-enforcement officer and “any offender . . . who is incarcerated at any jail or any state,

county or private correctional facility or who is serving on probation, parole, earned-release




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        Herrington filed a motion to dismiss the appeal and argued that the appeal was filed
one day after it was due. This Court found that the appeal should be allowed to proceed and
denied the motion.

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supervision, post-release supervision, earned probation, intensive supervision or any other

form of correctional supervision.” Miss. Code Ann. § 97-3-104(1).

¶10.   Before 2005, Section 97-3-104(1) applied to sexual acts “with or without the

offender’s consent.” Miss. Code Ann. § 97-3-104(1) (Rev. 2005). It also applied only to

offenders who were incarcerated. Id. In 2005, Section 97-3-104(1) was amended to add a

comma following “penetration”; to change “with or without the offender’s consent” to “with

the offender’s consent”; and to add at the end of that sentence “or who is serving on

probation, parole, earned-release supervision, post-release supervision, earned probation or

any other form of correctional supervision.” H.B. 612, Reg. Sess., 2005 Miss. Laws ch. 518.

¶11.   In 2010, the statute again was amended to add to the list of persons prohibited from

engaging in sexual relations with offenders any employee of a law enforcement agency or

correctional facility. H.B. 1135, Reg. Sess., 2010 Miss. Laws ch. 369. It also added a

prohibition of any “other sexual act” in addition to sexual penetration and added an offender

under “intensive supervision” to the list of offenders included in the statute. Id.

¶12.   Herrington contends that there is a significant difference between an offender who is

incarcerated and an offender who is serving on probation; otherwise, he claims there would

have been no need for the legislature to amend Section 97-3-104. He argues that the

legislature failed to amend Section 45-33-23(h)(xvii) to comply with the 2005 amendment

that prohibited sexual acts with probationers and offenders who were incarcerated alike.

Because the legislature did not amend Section 45-33-23(h)(xvii) to include probationers,


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Herrington concludes that the statute requires registration only for offenses involving

incarcerated offenders. He argues that there is simply no registration requirement under the

language of Section 45-33-23(h)(xvii).

¶13.   In contrast, the MDPS argues that Herrington’s victim was a probationer and, under

Section 97-3-104, a probationer is clearly defined as an “offender.” Miss. Code Ann. 97-3-

104. It argues that Section 97-3-104(1) does not distinguish between sexual activity by a

member of law enforcement and the other categories of persons provided. The MDPS

reasons that the statute enforces the same penalty for sexual acts with an offender, regardless

of an offender’s designation as an incarcerated offender or an offender under probation; the

penalty for the offense is a felony, a fine of not more than $5,000, and imprisonment not to

exceed five years. Miss. Code Ann. § 97-3-104(3) (Rev. 2014).

¶14.   The MDPS also contends that, unlike other subsections, Section 45-33-23(h)(xvii)

does not provide any exceptions to registration for a Section 97-3-104 conviction. Section

45-33-23(h)(xvii) requires registration as a sex offender for crimes under “Section 97-3-104

relating to the crime of sexual activity between law enforcement, correctional or custodial

personnel and prisoners.” Miss. Code Ann. § 45-33-23(h)(xvii). However, the legislature

provided specific exceptions to the registration requirement in other subsections of Section

45-33-23(h). For example, Section 45-33-23(h)(i) provides that a person convicted of

“Section 97-3-53 relating to kidnapping” must register as a sex offender only “if the victim

was below the age of eighteen (18)[.]” Miss. Code Ann. § 45-33-23(h)(i) (Supp. 2019).


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Under Section 45-33-23(h)(ii), a person must register for violations of “Section 97-3-65

relating to rape; however, conviction or adjudication under Section 97-3-65(1)(a) when the

offender was eighteen (18) years of age or younger at the time of the alleged offense, shall

not be a registrable sex offense[.]” Miss. Code Ann. § 45-33-23(h)(ii) (Supp. 2019).

Similarly, Section 45-33-23(h)(iv) requires registration for a conviction under “Section

97-3-95 relating to sexual battery; however, conviction or adjudication under Section

97-3-95(1)(c) when the offender was eighteen (18) years of age or younger at the time of the

alleged offense, shall not be a registrable sex offense[.]” Miss. Code Ann. § 45-33-23(h)(iv)

(Supp. 2019). And Section 45-33-23(h)(xiv) requires registration for violations of “Section

97-29-61(2) relating to voyeurism when the victim is a child under sixteen (16) years of

age[.]” Miss. Code Ann. § 45-33-23(h)(xiv) (Supp. 2019).

¶15.   Lastly, the MDPS argues that requiring sex-offender registration only in cases

involving prisoners does not comport with the concerns addressed in Mississippi Code

Section 45-33-21, which provides that “[t]he Legislature finds that the danger of recidivism

posed by criminal sex offenders and the protection of the public from these offenders is of

paramount concern and interest to government.” Miss. Code. Ann. § 45-33-21 (Rev. 2015).

The MDPS states that a probationer’s liberty also “hangs in the balance of law enforcement”

and that law-enforcement officers who engage in sexual conduct with a probationer violate

the law due to the unique position between the parties. The MDPS reasons that a

probationer’s liberty is at risk, and a law-enforcement officer has the ability to suggest a


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revocation, file charges leading to a revocation, or promote the filing of a petition for

revocation against a probationer. Thus, because the probationer is the victim in those

circumstances, the MDPS contends that the general public and those similarly situated as the

victim have the right to be warned about possible danger through public registration.

¶16.   We agree with the MDPS and find that the trial court erred by dispensing with

Herrington’s registration requirement under Section 45-33-23(h)(xvii). Although the statute

does not specifically include the term “probationer,” it encompasses the entirety of

convictions under Section 97-3-104 as registrable offenses.

¶17.   A review of other subsections supports this conclusion. First, Section 45-33-

23(h)(xvii) does not contain any exceptions to the registration requirement for convictions

under Section 97-3-104. Additionally, should this Court hold that Section 45-33-23(h)(xvii)

must be strictly construed to only include convictions involving sexual relations with

prisoners as a registrable offense, other statutes included under Section 45-33-23(h) also

must be strictly construed. Mississippi Code Section 97-29-63 provides that

       It is a felony for any person with lewd, licentious or indecent intent to
       photograph, film, videotape, record or otherwise reproduces the image of
       another person without the permission of the other person when the other
       person is located in a place where a person would intend to be in a state of
       undress and have a reasonable expectation of privacy . . . shall be guilty of a
       felony.

Miss. Code. Ann. § 97-29-63(1)(a) (Supp. 2019). Yet Section 45-33-23(h)(xv) states that

convictions under “Section 97-29-63 relating to filming another without permission where

there is an expectation of privacy” are registrable offenses. Miss. Code Ann. § 45-33-

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23(h)(xv) (Supp. 2019). Therefore, if strictly construed, only convictions for filming under

Section 97-29-63 would be registrable offenses. Persons convicted of photographing,

videotaping, recording, and otherwise reproducing images of another person would not be

required to register as sex offenders.

¶18.   In addition, Section 45-33-23(h)(xvi) requires persons convicted under “Section 97-

29-45(1)(a) relating to obscene electronic communication” to register. Miss. Code Ann. § 45-

33-23(h)(xvi) (Supp. 2019). However, Section 97-29-45(1)(a) declares it unlawful for any

person “to make any comment, request, suggestion or proposal by means of

telecommunication or electronic communication which is obscene, lewd or lascivious with

intent to abuse, threaten or harass . . . .” Miss. Code Ann. § 97-29-45(1)(a) (Rev. 2014). Strict

construction would exclude convictions for lewd and lascivious communications from being

registrable offenses. Moreover, Section 45-33-23(h)(xvii) states that it applies to crimes

“relating to the crime of sexual activity between law enforcement, correctional or custodial

personnel and prisoners.” Miss. Code Ann. § 45-33-23(h)(xvii). Yet Section 97-3-104(1)

states that it is unlawful for “any jailer, guard, employee of the Department of Corrections,

sheriff, constable, marshal, other officer, or employee of a law enforcement agency or

correctional facility to engage in” sexual relations with offenders. Miss. Code. Ann. §

97-3-104(1). As the MDPS argues, strict construction of the subsection would mean that a

constable had no duty to register as a sex offender even if the constable was convicted of

engaging in sexual acts with a prisoner. The subsections under Section 45-33-23(h) do not


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cite the exact language of the statutes that require registration as a sex offender but instead

give a general description of the statutory section. Therefore, we find that Section 45-33-

23(h)(xvii) requires registration for all convictions under Section 97-3-104.

¶19.   Although Herrington argues that “[t]here is a significant difference between an

incarcerated offender and an offender who is no longer incarcerated but is still under

correctional supervision,” this Court recently held that an offender under intensive

supervision, or house arrest, is “imprisoned” and is entitled to compensation under the

wrongful-conviction act, Mississippi Code Section 11-44-3 (Rev. 2019). Tipton v. State, 150

So. 3d 82, 86-87 (Miss. 2014). Section 97-3-104(1) provides that it is unlawful for a law-

enforcement officer to engage in sexual relations with an offender on “intensive

supervision.” While Section 45-33-23(h)(xvii) does not specifically list as a registrable-

offense sexual relations involving an offender on intensive supervision, a law-enforcement

officer who engages in sexual relations with an offender on intensive-supervision parole also

must register as a sex offender.

¶20.   Public policy supports the conclusion that Herrington committed a registrable offense.

As the MDPS reasons, the intent behind requiring registration for sex offenses is to protect

the public from those offenders. Parole is defined as “[t]he conditional release of a prisoner

from imprisonment before the full sentence has been served. Although not available under

some sentences, parole is usu[ally] granted for good behavior on the condition that the

parolee regularly report to a supervising officer for a specified period.” Parole, Black’s Law


                                              10
Dictionary (11th ed. 2019). “The essence of parole is release from prison, before completion

of the sentence, on condition that the prisoner abide by certain rules during the balance of the

sentence. Parole is not freedom.” 59 Am. Jur. 2d Pardon and Parole § 6 (1987). A parolee

and probationer must report to a supervising officer to maintain her release from

imprisonment. Her freedom from incarceration is dependent on good behavior. Under

Mississippi Code Section 47-7-37,

       Any probation and parole officer may arrest a probationer without a warrant,
       or may deputize any other officer with power of arrest to do so by giving him
       a written statement setting forth that the probationer has, in the judgment of the
       probation and parole officer, violated the conditions of probation. Such written
       statement delivered with the probationer by the arresting officer to the official
       in charge of a county jail or other place of detention shall be sufficient warrant
       for the detention of the probationer.

Miss. Code Ann. § 47-7-37(2) (Supp. 2019). Therefore, a law-enforcement officer is in a

unique position of power over a probationer.

¶21.   The United States Court of Appeals for the Ninth Circuit has noted the power

dynamics that exist between a prisoner and a guard, pointing out that it is difficult to discern

consent from coercion in cases involving sexual relations between the two parties. Wood v.

Beauclair, 692 F.3d 1041, 1047 (9th Cir. 2012). It stated, “[e]ven if the prisoner concedes

that the sexual relationship is ‘voluntary,’ because sex is often traded for favors (more phone

privileges or increased contact with children) or ‘luxuries’ (shampoo, gum, cigarettes), it is

difficult to characterize sexual relationships in prison as truly the product of free choice.” Id.

(citing Human Rights Watch Women’s Rights Project, All Too Familiar: Sexual Abuse of


                                               11
Women in U.S. State Prisons 5 (1996)). Similar aspects of control exist between a law-

enforcement officer and a prisoner as between an officer and a probationer. A probationer

might feel obligated to a law-enforcement officer to continue his or her probation status. And

a law-enforcement officer has the power to affect that probationer’s freedom. Accordingly,

public policy also supports the conclusion that Section 45-33-23(h)(xvii) encompasses

offenses involving probationers.

¶22.   Herrington argues that when the United States Supreme Court found that the Age

Discrimination in Employment Act of 1967 (ADEA) did not apply to state employees, it did

so not because of a statutory exception but because the statute was not a valid exercise of

Congress’s power under the Fourteenth Amendment of the United States Constitution. Kimel

v. Fla. Bd. Of Regents, 528 U.S. 62, 120 S. Ct. 631, 145 L. Ed. 2d 522 (2000). He also

argues that the United States Supreme Court reached a similar decision regarding the

Americans with Disabilities Act in Board of Trustees v. Garrett, 531 U.S. 356, 121 S. Ct.

955, 148 L. Ed. 2d 866 (2001).

¶23.   He argues that the issue of a statutory exception is not relevant when the language of

the statute is not sufficient to cover the act in question. We find that argument unpersuasive.

This case does not involve applying the United States Constitution to a federal statute to

determine whether a state may be sued in federal court. The language in Section 45-33-

23(h)(xvii) also is sufficient to cover convictions under Section 97-3-104 as a whole.

Because the subsections under Section 45-33-23(h) list brief descriptions of the statutes that


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require sex-offender registration and do not track the full language of the statutes, Section

45-33-23(h)(xvii) includes all convictions under Section 97-3-104 as registrable sex offenses.

                                      CONCLUSION

¶24.   We find that all convictions under Section 97-3-104 result in a requirement to register

as a sex offender and reverse the circuit court’s decision dispensing with Herrington’s

registration requirement.

¶25.   REVERSED AND REMANDED.

    RANDOLPH, C.J., KITCHENS, P.J., COLEMAN, MAXWELL, BEAM,
CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.




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