STATE OF NEW MEXICO v. BRUCE HALL
No. 32,943
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
December 5, 2012
2013-NMSC-001
Douglas Driggers, District Judge
ORIGINAL PROCEEDING ON CERTIORARI
Margaret McLean, Assistant Attorney General
Santa Fe, NM
for Petitioner
Jacqueline Cooper, Chief Public Defender
B. Douglas Wood III, Assistant Appellate Defender
Santa Fe, NM
for Respondent
OPINION
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 touching or the application of force, while California‘s “annoying or molesting” statute does not. Id. ¶ 8. The Court of Appeals therefore held that the two offenses were not “equivalent” for purposes of SORNA, id. ¶ 9, and Hall‘s conviction for failure to register should be reversed, id. ¶ 10. The Court of Appeals acknowledged that both statutes at issue require proof of an abnormal sexual interest in children, but nevertheless concluded that “the fact that both statutes may serve similar purposes is in no way controlling.” Id. ¶ 9. We granted the State‘s petition for writ of certiorari, and now reverse the Court of Appeals and remand to the district court for proceedings consistent with this opinion.
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 wrong it sought to remedy.” Id. (internal quotation marks and citation omitted). The history and background of the legislation also informs our search for legislative intent and the proper interpretation of legislation. See Chatterjee v. King, 2012-NMSC-019, ¶ 12, 280 P.3d 283 (in addition to examining the language of the statute, we consider its history and background).
{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),
{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.
{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.
{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.
{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.
{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 a registrable conviction in New Mexico. This is not to say that the elements of the out-of-state offense are entirely irrelevant. When the elements of the out-of-state sex offense are precisely the same elements of a New Mexico sex offense, the inquiry is at an end. However, even when the elements are dissimilar, courts should consider the defendant‘s underlying conduct to determine whether the defendant‘s conduct would have required registration in New Mexico as a sex offender.
{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
{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.
Shepard, 544 U.S. at 20. Shepard and Taylor allow courts to consider facts that were found by a jury beyond a reasonable doubt, or the equivalent. Such evidence would also be appropriate for consideration by a New Mexico court as it analyzes facts underlying an out-of-state conviction for purposes of SORNA.
{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,
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 not evidence.” Muse v. Muse, 2009-NMCA-003, ¶ 51, 145 N.M. 451, 200 P.3d 104. Because we cannot state categorically that the California offense of “annoying or molesting” a minor is equivalent to criminal sexual contact with a minor, and therefore a registrable offense, the State must produce evidence to demonstrate that the offenses are equivalent in this case.
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
CHARLES W. DANIELS, 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