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.
1 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
3 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.
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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.
1 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
3 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.