In Missouri, failing to register as a sex offender is a class C felony, pursuant to RSMo. Sections 589.400 and 589.425. The Missouri Court of Appeals for the Southern District recently had an opportunity to rule on some important aspects of this offense, and reached an interesting conclusion. The case was State of Missouri v. William Wilder, No. SD33140, on appeal from Wright County, Missouri. The decision was reached on January 16, 2015.
The background of the case was relatively simple. On October 22, 2010, Wilder was charged by information with the class C felony of knowingly failing to register as a sex offender (Count I), in violation of sections 589.400 and 589.425; and the class C felony of sexual assault (Count II), in violation of section 566.040. As the case proceeded to trial, a joint stipulation was entered between the State and the defense. The stipulation contained the following information:
1. Records from the State of California show that the defendant, William Wilder, was arrested by the Los Angeles Police Department on September 17, 1979.
2. The defendant entered into a final plea on October 4, 1979 to counts 1 and 5 (forcible rape).
3. The defendant was ultimately sentenced to eight (8) years in prison.
4. The defendant thereafter was notified by the State of California that he must register as a sex offender.
5. The Notification of Registration Requirement bears the defendant’s signature and right thumbprint and is dated September 17, 1984.
6. The defendant’s criminal history record shows the defendant was convicted of “Rape with Force” and he was received at a California Penal Institution on March 2, 1982.
7. On September 23, 2010, Wright County Missouri Deputy Tiffany Butts (Neill) received a report of sexual assault. The alleged victim, [B.R.], reported that the defendant was helping her move on September 3, 2010 and the defendant forced her to have sex with him. [Victim] reported that the defendant again forced her to have sex on September 11, 2010.
8. The defendant was arrested in Missouri on the forcible rape charge on September 24, 2010 (21 days after the initial alleged rape within Wright County Missouri) and had never registered in Missouri as a sex offender.
9. That defendant moved from the State of California to the State of Missouri in 1985, after being released from confinement.
10. That at the time the defendant moved to the State of Missouri, the State of Missouri did not have any statutory requirement for anyone who was a sex offender to register as a sex offender.
11. That the State of Missouri did not have any statutory requirement to register as a sex offender until 1997. (See Section 589.400 RSMo)
12. That the defendant was notified upon his arrest to register as a sex offender in the State of Missouri by registering with the Wright County Sheriff’s Department and the defendant has complied with that request.
13. That the notification that defendant received to register as a sex offender upon his arrest on September 24, 2010 was the first notification that he had received to register as a sex offender since he moved to Missouri in 1985.
Besides this joint stipulation, no other evidence was submitted to the trial court, and no witnesses testified. In their briefing to the trial court, the parties admitted that when Wilder moved to Missouri in 1985, there was no federal requirement for registration by sex offenders. After the submission of trial briefs, the court in 2013 entered its “Order,” with findings of fact and conclusions of law, finding Wilder “guilty of the Class C felony of Failing to Register as a Sex Offender, [pursuant] to RSMo. Section 589.425, beyond a reasonable doubt.” The court sentenced Wilder to prison, but suspended the sentence and put him on probation.
Wilder appealed his case, claiming that the trial court erred in that there was insufficient evidence for the trial court to find that Wilder knowingly failed to register as a sex offender in Missouri under RSMo. Section 589.425. The appellate court agreed, finding that the critical element that had not been proven was the “knowingly” element.
The court found that a critical element of the “failure to register” statute is the “knowingly” element. In other words, the State should have proven that the defendant knowingly or deliberately failed to register, after being aware that he had to do so. A person cannot violate the statute by being negligent, careless, or reckless.
Section 589.425 provides: “A person commits the crime of failing to register as a sex offender when the person is required to register under sections 589.400 to 589.425 and fails to comply with any requirement of sections 589.400 to 589.425.” The State had the burden to show that Wilder knowingly failed to comply with the registration requirement of section 589.400 to 589.425. This is consistent with the findings of State v. Jacobs, 421 S.W.3d 507, 513 (Mo.App. S.D. 2013) (en banc) and State v. Younger, 386 S.W.3d 848, 853 (Mo.App. W.D. 2012).
The appellate court had to conclude that no evidence was presented that Wilder knowingly failed to register. Instead, the State claimed that “failing to register” should be seen as a “strict liability” crime; that is, no mental state should need to be proven. In the State’s view, if you fail to register, you are guilty, period. The appellate court rejected this view. It clearly and unequivocally held that the State must prove that a person “knowingly” failed to register. This clearly shows that the State must first demonstrate that a person knew he had to register, and then deliberately failed to do so. And this it could not do. You can’t be guilty of “failing to register” if you didn’t know you were supposed to register.
In today’s mobile society, this places the burden on the State of actually informing people of their duty to register before trying to prosecute them. Seen in this light, the Wilder decision is consistent with due process and fundamental fairness.
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