State v. HallState v. Hall
CHÁVEZ, Justice.
{1} Defendant Bruce Hall was convicted of a sex crime in California pursuant to a plea agreement. Hall subsequently moved to New Mexico and was charged with the fourth-degree felony of failing to register as a sex offender in violation of
BACKGROUND
{2} Hall moved to New Mexico in 2006 from California, where he had previously been convicted of violating a California misdemeanor statute prohibiting “annoying or molesting” a child under the age of eighteen.
{3} In 2008, Hall called the Las Cruces Police Department and claimed that he was being harassed. Hall told the responding officer that he was being harassed because he was a convicted sex offender in California. Hall also told the officer that he was not registered as a sex offender in New Mexico. Hall was charged with failure to register as a sex offender in violation of
{4} Hall moved to dismiss the charge, arguing that there was no statute in New Mexico equivalent to California‘s “annoying or molesting” a minor statute, and therefore his failure to register did not violate SORNA. The State responded that Hall was required to register in New Mexico because the sex crime he committed in California is equivalent to the New Mexico crime of sexual contact of a minor in the fourth degree, which is a registrable offense. The State described the conduct giving rise to the California conviction as Hall “inappropriately touch[ing] the private parts” of several boys that he was lifting up to look into a camera‘s viewfinder. The district court denied the motion, and Hall entered a conditional plea of guilty, allowing him to appeal the denial of his motion to dismiss.1
{5} The Court of Appeals reversed the district court‘s ruling, holding that Hall‘s California conviction was not equivalent to criminal sexual contact of a minor under SORNA and, as such, Hall was not required to register as a sex offender upon moving to New Mexico. State v. Hall, 2011-NMCA-047, ¶ 9, 149 N.M. 546, 252 P.3d 770. The Court of Appeals focused its “inquiry on the statutory elements of the [two] offenses,” id. ¶ 5, concluding that each statute required an element that the other did not, id. ¶¶ 6-8. The Court of Appeals concluded that a conviction for criminal sexual contact of a minor requires
DISCUSSION
{6} “A sex offender residing in this state shall register with the county sheriff for the county in which the sex offender resides.”
{7} The Legislature neither defined “equivalent” nor explained how courts should determine when an out-of-state offense is equivalent to one of the twelve enumerated registrable offenses. Hall argues that for an out-of-state conviction to be equivalent to a registrable offense in New Mexico, the defendant must have been convicted of a statute that contains precisely the same elements as one of the twelve enumerated offenses. He contends that because the California offense of “annoying or molesting” a child does not contain the required elements of any of the twelve enumerated offenses, he was not convicted of a “sex offense” under SORNA.
{8} The State urges us to look beyond the elements of the offense to the actual conduct that supported the conviction in the other jurisdiction. In the State‘s view, if Hall was convicted on the basis of conduct that would have constituted one of the twelve enumerated offenses, the out-of-state conviction is equivalent. Under this “actual conduct” approach, it does not matter that the out-of-state offense and the New Mexico offense do not share precisely the same elements. The State contends that the conduct underlying Hall‘s “annoying or molesting” conviction would have constituted criminal sexual contact of a minor if it had taken place in New Mexico.
The Language and History of SORNA Suggest that It Should Be Interpreted Broadly
{9} What constitutes an equivalent offense involves a question of statutory interpretation. Interpretation of a statute is an issue of law that we review de novo. State v. Rowell, 121 N.M. 111, 114, 908 P.2d 1379, 1382 (1995). Our main goal when interpreting a statute is to give effect to the Legislature‘s intent. Id. Deciphering what was intended by the Legislature requires us to examine “the object the legislature sought to accomplish and the
{10} The Legislature has made findings that support its stated purpose in enacting SORNA, which is “to assist law enforcement agencies’ efforts to protect their communities.”
{11} The Legislature has amended SORNA several times since its enactment in 1995 as the Sex Offender Registration Act (SORA), 1995 N.M. Laws, ch. 106, each time broadening rather than narrowing the law. Four years after enacting SORA, the Legislature added to the list of registrable offenses and began requiring nonresident sex offenders to register in New Mexico if they work or attend school in the state. 1999 N.M. Laws, ch. 19, §§ 2-3. The Legislature also deleted a provision of the law that had prohibited distribution of registry information, instead requiring information to be released to the public upon request. Compare 1995 N.M. Laws, ch. 106, § 6 (“Information obtained from a sex offender pursuant to [SORA] shall not be disseminated to persons or entities other than law enforcement agencies.“), with 1999 N.M. Laws, ch. 19, § 8(B) (describing procedure for a member of the public to obtain registry information).
{12} In 2000, the Legislature began requiring law enforcement to give sex offenders’ information to local schools, and it authorized the Department of Public Safety to create a website publishing the information to the general public. 2000 N.M. Laws, ch. 8, § 4(D)-(E). It also made failure to register as a sex offender a fourth-degree felony; it had previously been a misdemeanor. Compare 1999 N.M. Laws, ch. 19, § 4(I), (J) (prescribing misdemeanor penalties for failure to register), with 2000 N.M. Laws, ch. 8, § 2(I), (J) (defining failure to register as a felony). Once again, the Legislature added to the list of crimes that constitute sex offenses. 2000 N.M. Laws, ch. 8, § 1(B).
{13} In 2005, the Legislature amended the statute to make tribal court convictions a basis for SORNA registration, and it again added to the list of registrable offenses. 2005 N.M. Laws, ch. 279, § 1. The 2005 amendments deleted the requirement that a “sex offender”
{14} In 2007, the Legislature added the language at issue in this case. SORNA had previously merely stated that a “‘sex offense’ means” any one of a list of New Mexico offenses. 2007 N.M. Laws, ch. 68, § 1(E). The relevant section was subsequently amended to read, “‘sex offense’ means any of the following offenses or their equivalents in any other jurisdiction.” 2007 N.M. Laws, ch. 69, § 5(E).
{15} We must assume that this change in language had meaning. See
{16} In the seventeen-year history of SORNA, the Legislature has continually amended the law to make it more expansive—that is, to register more people for more offenses, to make information more accessible to the public, and to increase penalties for failing to comply. In this way, the Legislature has demonstrated its preference for a broad registry law that provides more, rather than less, protection for the community.
{17} In addition, because SORNA is remedial legislation, see State v. Myers, 2011-NMSC-028, ¶ 42, 150 N.M. 1, 256 P.3d 13 (“SORNA is primarily remedial in purpose and effect.” (internal quotation marks and citation omitted)); State v. Brothers, 2002-NMCA-110, ¶ 20, 133 N.M. 36, 59 P.3d 1268 (“SORNA has a remedial purpose, namely, to protect communities from sex offenders.“), it must be interpreted broadly. See, e.g., In re Esther V., 2011-NMSC-005, ¶ 17, 149 N.M. 315, 248 P.3d 863 (“We interpret remedial statutes liberally to facilitate and accomplish their purposes and intent.” (internal quotation marks, brackets, and citation omitted)). Given the choice between a narrow, elements-based approach to the law and a broader approach that examines the offender‘s actual conduct, we find the broader approach more consonant with the Legislature‘s intent.
{18} We read SORNA to mean that the defendant‘s offense in the foreign state, rather than the statute under which the defendant was convicted, must be the equivalent of an enumerated registrable offense in New Mexico. To determine equivalence, courts must look beyond the elements of the conviction to the defendant‘s actual conduct. To hold otherwise would be to undermine the legislative intent of SORNA and allow sex offenders convicted in other jurisdictions to avoid registration, even when their conduct would have supported
{19} Hall argues that the rule of lenity applies to this case, and therefore we must interpret SORNA narrowly. Under the rule of lenity, “criminal statutes should be interpreted in the defendant‘s favor when insurmountable ambiguity persists regarding the intended scope of a criminal statute.” State v. Ogden, 118 N.M. 234, 242, 880 P.2d 845, 853 (1994). However, the fact that the language of a statute is susceptible to two interpretations does not necessarily render the statute ambiguous. Id. (“A criminal statute is not ambiguous for purposes of lenity merely because it is possible to articulate a construction more narrow than that urged by the Government.” (internal quotation marks, brackets, and citation omitted)). A statute is ambiguous for the purpose of the rule of lenity only if “reasonable doubt persists about a statute‘s intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute.” Id. (quoting Moskal v. United States, 498 U.S. 103, 108 (1990)) (internal quotation marks omitted). Here, the legislative history and motivating policies behind SORNA indicate clearly and without ambiguity that the registration requirement should encompass more, rather than fewer, out-of-state offenders.
{20} We are not the only jurisdiction to take this approach. For example, in State v. Mueller, 2010-0710, pp. 5-6 (La. App. 4 Cir. 12/8/10); 53 So. 3d 677, 681-82, the Louisiana Court of Appeal held that a conviction in Oklahoma for indecent exposure was equivalent to the Louisiana crime of indecent behavior with juveniles. Even though the Louisiana statute had as an element that the victim must be a juvenile, and the Oklahoma statute under which the defendant had been convicted did not, the court observed that the victims of the Oklahoma crime were minors. Id. Therefore, the elements of the Louisiana crime were met by the defendant‘s Oklahoma conviction, the two crimes were equivalent, and the defendant‘s conviction for failure to register as a sex offender was upheld. Id. at pp. 5-6, 14; 53 So. 3d at 681-82, 687.
{21} In In re North v. Board of Examiners of Sex Offenders of State of New York, 871 N.E.2d 1133 (N.Y. 2007), the Court of Appeals of New York applied a similar analysis, which it described as follows:
[W]e conclude that . . . SORA requires registration whenever an individual is convicted of criminal conduct in a foreign jurisdiction that, if committed in New York, would have amounted to a registrable New York offense. This necessarily requires that the Board compare the elements of the foreign offense with the analogous New York offense to identify points of overlap. When the Board finds that the two offenses cover the same conduct, the analysis need proceed no further for it will be evident that the foreign
conviction is the equivalent of the registrable New York offense for SORA purposes. In circumstances where the offenses overlap but the foreign offense also criminalizes conduct not covered under the New York offense, the Board must review the conduct underlying the foreign conviction to determine if that conduct is, in fact, within the scope of the New York offense. If it is, the foreign conviction is a registrable offense under SORA‘s essential elements test.
{22} The remaining question is how should a New Mexico court determine the actual conduct that supported the defendant‘s conviction of a sex offense in another jurisdiction when deciding equivalency under SORNA. In this case, Hall was convicted of annoying or molesting a child under California Penal Code Section 647.6 pursuant to a plea agreement. When a defendant enters a plea of guilty or nolo contendere, the charging document, plea agreement, or transcript of the plea hearing should establish the factual basis for the plea. A New Mexico court should consider the facts stated in such documents when determining whether the conduct underlying the plea would have constituted a violation of one of the twelve enumerated SORNA offenses that require sex offender registration. In essence, the question is whether the out-of-state fact-finder necessarily must have found facts that would have proven the elements of the New Mexico registrable offense. If so, the alleged sex offender has committed the equivalent of an enumerated New Mexico sex offense.
{23} We conclude that this analysis provides adequate protection for a defendant‘s rights. It is consistent with the jurisprudence of United States Supreme Court cases addressing how federal courts should analyze state court convictions for purposes of the Armed Career Criminal Act (ACCA),
a bench-trial judge‘s formal rulings of law and findings of fact, and in pleaded cases . . . the statement of factual basis for the charge, shown by a transcript of plea colloquy or by written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea.
{24} We realize that in some cases, such as a guilty plea in which there was no allocution, there will be no factual findings for a New Mexico court to review. In that instance, the court will be limited to comparing the elements of the foreign sex offense to those of the enumerated offenses under SORNA. In some cases, this will mean that out-of-state sex offenders will not have to register in New Mexico, even for serious offenses. If the Legislature is disturbed by this possibility, it is free to amend SORNA once again. Several states have passed laws requiring out-of-state sex offenders to register for any offense that was registrable in the state of conviction. See, e.g.,
The Record Is Insufficient for a Court to Determine Whether Hall‘s Conduct Violated One of the Enumerated Registrable Offenses
{25} The State contends that Hall‘s conduct supporting his conviction in California would have been conduct that violated the New Mexico offense of criminal sexual contact of a minor because his conduct involved touching several boys’ “private parts.” To convict a defendant in New Mexico of criminal sexual contact of a minor in the third degree, the State must prove that the defendant touched or applied force to the intimate parts (defined as the “primary genital area, groin, buttocks, anus or breast“) of a child under the age of thirteen.2
{26} In theory, we agree with the State‘s framing of the issue: if the defendant‘s conduct had occurred in New Mexico, and the conduct would have supported a conviction of an offense enumerated in SORNA, then the defendant committed an equivalent offense and must register as a sex offender in New Mexico. However, we cannot make this determination in Hall‘s case because the record is inadequate for a New Mexico court to determine in what conduct Hall engaged that gave rise to his California conviction. The State‘s allegations of Hall‘s conduct may support a conclusion that his conduct would have violated the New Mexico crime of criminal sexual contact of a minor in the third degree; however, we cannot accept these allegations for two reasons.
{27} First, the State has not established enough facts to support the elements of the New Mexico offense. For example, the State has neither established the victims’ ages at the time of the offense, which are necessary to establish criminal sexual contact of a minor in the third degree under
{28} Second, despite the State‘s assertions, these factual allegations are entirely unsubstantiated. The record does not contain any stipulation by Hall regarding his conduct or any documents reflecting an allocution in California. Without evidence, we cannot accept the State‘s unsubstantiated allegations as fact or speculate about the age of the victims or where Hall touched them, if at all. “It is not our practice to rely on assertions of counsel unaccompanied by support in the record. The mere assertions and arguments of counsel are
Principles of Comity Do Not Require Hall to Register as a Sex Offender in New Mexico
{29} Finally, the State argues that Hall‘s California offense of “annoying or molesting” a child must be per se registrable in New Mexico because of the principles of comity and full faith and credit. See
CONCLUSION
{30} To determine whether a foreign sex offense is equivalent to a New Mexico sex offense for purposes of SORNA, and where the two offenses when compared do not share the exact same elements, a court must look beyond the elements of the offense and consider whether the defendant‘s actual conduct, had it occurred in New Mexico, would have constituted a registrable offense. However, in this case, there is an insufficient factual record on which to determine the defendant‘s actual conduct. For this reason, we reverse the Court of Appeals and remand to the district court for further proceedings consistent with this opinion, with leave for Hall to withdraw his guilty plea.
{31} IT IS SO ORDERED.
EDWARD L. CHÁVEZ, Justice
WE CONCUR:
PETRA JIMENEZ MAES, Chief Justice
RICHARD C. BOSSON, Justice
PAUL J. KENNEDY, Justice
Topic Index for State v. Hall, No. 32,943
APPEAL AND ERROR
Fundamental Error
CRIMINAL LAW
Sexual Offences
CRIMINAL PROCEDURE
Plea and Plea Bargaining
MISCELLANEOUS STATUTES
SORNA (Sexual Offender Registration and Notification Act)
STATUTES
Interpretation
Legislative Intent
Rules of Construction