BRENT OUTERSKY v. MISSOURI STATE HIGHWAY PATROL (2026)

Mr. Brent Outersky (“Outersky”) appeals the judgment of the Circuit Court of Ray County, Missouri (“circuit court”), denying Outersky's petition for removal from Missouri's sex offender registry. In his sole point on appeal, Outersky argues the circuit court erred in denying his petition for removal because his conviction for third-degree assault is not an offense that is subject to registration under Missouri's Sex Offender Registration Act, § 589.400.¹ We affirm.

Factual and Procedural History 2

In 1999, the State charged Outersky with one count of first-degree sexual misconduct for events occurring on August 12, 1999. Together with the misdemeanor information (“original charging document”), the prosecuting attorney filed a probable cause statement wherein Detective swore that Victim, eleven years old, “will testify” that Outersky “took [Outersky's] hand and rubbed over [Victim's] bathing suit touching [Victim's] thighs and vagina” and that Outersky “ ‘French Kissed’ [Victim].”

Subsequently, the State filed an amended misdemeanor information (“subsequent charging document”) charging Outersky with third-degree assault arising out of the same events alleged to have occurred on August 12, 1999. The subsequent charging document stated that Outersky “knowingly caused physical contact with [Victim], knowing that such person would regard such contact as offensive or provocative.”

Outersky pleaded guilty to third-degree assault as charged in the subsequent charging document. At the plea hearing, there was no testimony regarding the reason for the amended charge. When the plea court asked Outersky if he pleaded guilty to “knowingly caus[ing] physical contact with [Victim,] knowing that that person would regard such contact as offensive or provocative,” “on August 12th,” Outersky replied, “Yes.”³ The plea court accepted Outersky's plea and suspended imposition of Outersky's sentence, placing him on probation for twenty-four months.⁴ The plea court imposed several special conditions of probation, including that Outersky complete sex offender treatment. Outersky later violated the terms of probation, so the plea court revoked his probation and imposed his sentence.

Years after the completion of his sentence for third-degree assault, Outersky was on probation for an unrelated criminal offense when Outersky's probation officer in that matter directed him to register as a sex offender. Outersky complied and is currently registered as a tier 1 sex offender for a sexual misconduct offense.

On February 28, 2024, Outersky petitioned the circuit court for removal from the sex offender registry, arguing that his name should be removed because the offense he pleaded guilty to—third-degree assault—is not a sex offense under the federal Sex Offender Registration and Notification Act (“SORNA”), 34 U.S.C. § 20913, which triggers registration under Missouri's Sex Offender Registration Act (“SORA”), § 589.400.1(7). The Missouri State Highway Patrol (“MSHP”) answered the petition, and the circuit court held an evidentiary hearing on the matter.

At the hearing, Outersky argued that the circuit court's sex offense determination was a decision to be made as a matter of law based on all of the records from the underlying criminal case. Outersky offered, and the circuit court admitted, a certified copy of Outersky's criminal file from the underlying criminal case, including the probable cause statement and the transcript of Outersky's guilty plea hearing. Outersky did not testify as to the facts of the underlying offense or offer any other evidence in support of his petition for removal. MSHP did not present any additional evidence to the circuit court.

After taking the matter under advisement, the circuit court issued its judgment denying Outersky's petition for removal.

This appeal follows.

Standard of Review

In reviewing an action seeking a declaratory judgment ․, this Court's review “is the same as in any court-tried case: the judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” A claim the circuit court erroneously declared or applied the law is reviewed de novo.

Eikmeier v. Granite Springs Home Owners Ass'n, Inc., 727 S.W.3d 432, 435-36 (Mo. banc 2026) (citation omitted) (quoting Allsberry v. Flynn, 628 S.W.3d 392, 395 (Mo. banc 2021)).

Analysis

Outersky's sole point on appeal argues the circuit court erred in denying his petition for removal because the offense that he pleaded guilty to—third-degree assault—is not, “by its nature,” a sex offense under SORNA.

Under section 589.400.1(7) of SORA, a person must register as a sex offender if that person is required to register under SORNA. SORNA requires a “sex offender” to register. 34 U.S.C. § 20913(a) (2018). SORNA broadly defines “sex offender” as “an individual who was convicted of a sex offense.” 34 U.S.C. § 20911(1) (2018). A “sex offense” includes “a criminal offense that is a specified offense against a minor.” 34 U.S.C. § 20911(5)(A)(ii) (2018). Finally, the definition of “specified offense against a minor” contains a catchall provision that includes “[a]ny conduct that by its nature is a sex offense against a minor.” 34 U.S.C. § 20911(7)(I) (2018) (emphasis added).

Doe v. Frisz, 643 S.W.3d 358, 362 (Mo. banc 2022) (alteration in original) (footnote omitted) (emphasis in original).

Outersky's conviction for third-degree assault is not specifically identified as a sex offense requiring registration as a sex offender under SORA. See § 589.400.1(1-7). However, Outersky is required to register under SORA's “catchall provision” if he is required to register under SORNA. See § 589.400.1(8). Thus, the determinative issue in this appeal is whether Outersky's conviction for third-degree assault involves “[a]ny conduct that by its nature is a sex offense against a minor.” 34 U.S.C. § 20911(7)(I).

Outersky's petition for removal seeks a declaration that his conviction for third-degree assault is not a registerable offense.⁵ “In a declaratory judgment action the burden of proof rests, as in the usual course, on the party who asserts the issue according to the cause of action.” City of Aurora v. Spectra Commc'ns Grp., LLC, 592 S.W.3d 764, 796 (Mo. banc 2019) (quoting Shaffer v. Terrydale Mgmt. Corp., 648 S.W.2d 595, 609 (Mo. App. W.D. 1983)); accord Sur-Gro Fin., Inc. v. Smith, 755 S.W.2d 439, 442 (Mo. App. W.D. 1988). Thus, “[a]s the proponent, [Outersky] ha[s] the burden of proof.” City of Aurora, 592 S.W.3d at 796; see, e.g., Sur-Gro Fin., 755 S.W.2d at 442 (explaining that the party bearing the burden of proof on an issue of fact must present evidence supporting that issue of fact or that party's argument fails); Citizens for Ground Water Prot. v. Porter, 275 S.W.3d 329, 347 (Mo. App. S.D. 2008) (same).

Because Outersky's cause of action is civil, the standard of proof is preponderance of the evidence. See Horning v. White, 314 S.W.3d 381, 385 (Mo. App. W.D. 2010). “To satisfy the preponderance standard, a party has the burden of proving that ‘a proposition is more likely true than not.’ ” Id. (quoting Morgan v. State, 272 S.W.3d 909, 912 (Mo. App. W.D. 2009)). Under SORA and the relevant provisions of SORNA, a person must register if they are convicted of “a specified offense against a minor,” which includes “[a]ny conduct that by its nature is a sex offense against a minor.” Frisz, 643 S.W.3d at 362. Thus, in order to succeed on his petition for removal, Outersky was required to present evidence to the circuit court that demonstrated, more likely than not, his conviction for third-degree assault did not involve “[a]ny conduct that by its nature is a sex offense against a minor.” See id.

“Missouri courts have applied a non-categorical approach when determining whether an offense included conduct that by its nature was a sex offense against a minor.” Frisz, 643 S.W.3d at 362. “The non-categorical approach allows courts to look ‘beyond the guilty plea to the underlying facts of the offense to determine whether the petitioner's offense qualifie[s] as a sex offense.’ ” Id. (alteration in original) (quoting Doe v. Belmar, 564 S.W.3d 415, 418 (Mo. App. E.D. 2018)). “A categorical approach, on the other hand, would permit courts to ‘look only to the fact of conviction and the statutory definition of the prior offense.’ ” Id. (quoting Doe v. Isom, 429 S.W.3d 436, 442 n.7 (Mo. App. E.D. 2014)).

“In prior cases applying the non-categorical approach, Missouri courts have considered allegations to which the defendant pleaded guilty.” Id. at 363 (citing the outcomes in Isom and Belmar as dependent on the sexual allegations in the charging document for the offense defendant pleaded guilty to). However, “[t]his court has also looked beyond the charging document when ascertaining the underlying conduct on which the defendant's conviction was based[.]” Iseman v. Mo. Dep't of Corr., 710 S.W.3d 539, 546 (Mo. App. W.D. 2025). In Iseman, this Court determined the petitioner's offense was sexual by its nature by looking to “uncontroverted” facts “drawn from the amended information, the guilty plea transcript, and the sentencing transcript.” Id. at 544. Additionally, in Wilkerson v. State, 533 S.W.3d 755, 759 (Mo. App. W.D. 2017), and Drewel v. Mo. State Highway Patrol, 672 S.W.3d 284, 287 (Mo. App. W.D. 2023), this Court's sex offense determinations turned on the petitioner's admissions of sexual misconduct at an evidentiary hearing. See Iseman, 710 S.W.3d at 546. And, in United States v. Hill, 820 F.3d 1003, 1006 (8th Cir. 2016), a case cited “favorably” by the Missouri Supreme Court,⁶ the Eighth Circuit looked to the “relevant arrest affidavit” which alleged that “Hill masturbated in front of an eleven-year-old child” in determining that the offense that defendant pleaded guilty to involved a sex offense within the meaning of SORNA. See Iseman, 710 S.W.3d at 546.

Conversely, the Missouri Supreme Court has held that not “all reliable evidence” may be considered by the court under the non-categorical approach. See Frisz, 643 S.W.3d at 361.

In Frisz, the petitioner was originally charged with seventeen counts including sodomy and child molestation of his daughters. Id. at 361. Eventually, the petitioner agreed to plead to four new counts of endangering the welfare of a child, and the State agreed to dismiss all other counts. Id. Pursuant to this agreement, the petitioner pleaded guilty to only the four new counts. Id. The charging document for those new counts alleged that the petitioner “struck H.C. on two instances, struck R.C. on one instance, and exposed R.C. to the cold with inadequate clothing for an extended period of time.” Id.

The Supreme Court held that the new offenses the petitioner pleaded guilty to, endangering the welfare of a child, were not sexual in nature because the original charges constituted “abandoned pleadings.” Id. at 363-64. The Court held that, when the State dismissed the seventeen original charges and chose to pursue four new charges with new factual allegations supporting the petitioner's commission of the new charges, the State abandoned the factual allegations in those original charges. Id. at 363.

Outersky argues that his conviction for third-degree assault is not sexual by its nature because the court cannot rely on the original charging document or the probable cause statement supporting that charge because both documents constitute “abandoned pleadings” under Frisz. He argues that, when the State chose not to pursue the original charges, it abandoned both the original charging document and the probable cause statement.

However, even if the original charging document constituted an “abandoned pleading,” the subsequent charging document did not include any modified factual allegations that were different from the original probable cause statement, as was the case in Frisz. In Frisz, neither the new charging document nor the new factual allegations filed in support of the new charging document were sexual in nature. Here though, the only evidence that the circuit court had before it that described any factual events occurring on August 12, 1999, supporting a conviction for third-degree assault, was the probable cause statement. And, as we have stated, it was Outersky, not the State, that bore the burden of proof in the current declaratory judgment proceeding that the conduct supporting his conviction for third-degree assault was not sexual in nature. In other words, the petitioner in Frisz presented affirmative evidence that the charges he pleaded guilty to were not sexual in nature. Conversely, though Outersky bore the burden of proof in this case, he did not present any evidence to the circuit court demonstrating that the conduct underlying his conviction for third-degree assault did not involve “[a]ny conduct that by its nature is a sex offense against a minor.” See id. at 362.

In order for the circuit court to grant his petition for removal, Outersky was required to present affirmative evidence demonstrating that the factual basis for his conviction was not sexual in nature. Outersky could have testified to the nature of the offense, but he did not. The evidence that he offered to the circuit court and argued was relevant to the sex offense determination, namely the subsequent charging document and the plea colloquy, did not provide a factual basis for his conviction—they only indicated the charge he pled guilty to, third-degree assault, and the elements of that charge.⁷ Thus, Outersky failed to carry his burden of proof on his petition for removal from the sex offender registry.

Therefore, the circuit court did not err in denying Outersky's petition for removal from the sex offender registry.

The judgment of the circuit court is affirmed.

Conclusion

FOOTNOTES

1.   All statutory references are to The Revised Statutes of Missouri (2016), as supplemented through February 28, 2024, unless otherwise indicated. Under the directive of section 509.520.1(4), (7) (Supp. IV 2025), we do not use the names of any victims or minors in this opinion. And, pursuant to Missouri Supreme Court Operating Rule 2.02(c)(3), we do not identify the names of non-party witnesses in our ruling today.

3.   Merriam-Webster Dictionary defines “provocative” as “tending to provoke, excite, or stimulate,” Merriam-Webster Dictionary, https://www.merriamwebster.com/dictionary/relate (last visited Mar. 16, 2026). The probable cause statement from the original charge is the only evidence in the record describing events that occurred on August 12, 1999, and the events described in that probable cause statement are consistent with “provocative” touching to support a conviction for third-degree assault. There is nothing in the record before the plea court or the circuit court in the current proceeding in which Outersky provided any alternative factual scenario supporting a description of events that occurred on August 12, 1999, which formed the basis for his guilty plea to third-degree assault.

4.   “Although a suspended imposition of sentence would not constitute a ‘conviction’ under Missouri law, federal law controls whether a prior state-court guilty plea constitutes a ‘conviction.’ ” Doe v. Frisz, 643 S.W.3d 358, 363 n.2 (Mo. banc 2022) (citing Doe v. Replogle, 344 S.W.3d 757, 758-59 (Mo. App. W.D. 2011)). Under federal law, a “state-court guilty plea, followed by probation and an SIS” constitutes a “conviction” under SORNA. Replogle, 344 S.W.3d at 758-59. Irrespective, in this case, Outersky violated the terms of his probation, and his prison sentence was actually “imposed,” resulting in a “conviction” under Missouri law.

5.   Although Outersky's petition does not specifically state he seeks a declaration that he be removed from the registry, a declaration is the “only remedy” available to Outersky “short of waiting to see if he is charged for failing to register is to seek a declaration that he does not have to register as a sex offender.” See Frisz, 643 S.W.3d at 366 & n.4 (“Doe's only remedy short of waiting to see if he is charged for failing to register is to seek a declaration that he does not have to register as a sex offender. Under section 527.010, RSMo 2016, circuit courts have the power to enter declaratory judgments to declare rights, status, and other legal relations; the declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.” (citation modified)); Iseman v. Mo. Dep't of Corr., 660 S.W.3d 684, 693 (Mo. App. W.D. 2023) (“Iseman may petition for declaratory relief under § 527.010, as the Missouri Supreme Court specifically contemplated in Frisz, 643 S.W.3d at 366 n.4.”).

6.   The Missouri Supreme Court cited Hill “favorably” in Frisz. See Iseman v. Mo. Dep't of Corr., 710 S.W.3d 539, 546 (Mo. App. W.D. 2025) (“Hill was cited favorably by the Missouri Supreme Court and involved looking at an arrest affidavit when looking at the circumstances of the underlying crime.”).

7.   The adequacy of the plea colloquy is not an issue raised in this appeal. We note, however, that Rule 24.02(e) specifies that “[t]he court shall not enter a judgment upon a plea of guilty unless it determines that there is a factual basis for the plea.” This Court has held that “[s]imply reciting the charging document, which, in all likelihood, merely quotes the statutory elements, is not sufficient to establish a factual basis for the defendant's guilty plea. In addition to the charge and statutory elements, the record must reflect the defendant's actual, factually-specific conduct leading to the charge.” Frantz v. State, 451 S.W.3d 697, 704 (Mo. App. W.D. 2014). Unfortunately, that does not appear to have happened when Outersky pleaded guilty to third-degree assault arising from the August 12, 1999 incident involving the child victim.

Mark D. Pfeiffer, Judge

Gary D. Witt, Presiding Judge, and Thomas N. Chapman, Judge, concur.