State v. Etcitty ( 2011 )

1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please
2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
3 Please also note that this electronic memorandum opinion may contain computer-generated
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6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 STATE OF NEW MEXICO,
8 Plaintiff-Appellee,
9 v. No. 30,056
10 CHRIS RONALD ETCITTY,
11 Defendant-Appellant.
12 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
13 John A. Dean, Jr., District Judge
14 Gary K. King, Attorney General
15 Margaret McLean, Assistant Attorney General
16 Santa Fe, NM
17 for Appellee
18 Chief Public Defender
19 B. Douglas Wood III, Assistant Appellate Defender
20 Santa Fe, NM
21 for Appellant
22 MEMORANDUM OPINION
23 SUTIN, Judge.
1 Defendant Chris Ronald Etcitty appeals his conviction of failure to register as
2 a sex offender in violation of NMSA 1978, Section 29-11A-4(N) (2005) of the New
3 Mexico Sex Offender Registration and Notification Act (SORNA), NMSA 1978,
4 §§ 29-11A-1 to -10 (1995, as amended through 2007). Defendant argues (1) that the
5 district court erred in admitting evidence of a sex crime conviction in Florida; (2) that
6 the State failed to prove that Defendant was a sex offender under New Mexico law;
7 and (3) that the district court erred in applying a strict liability standard rather than one
8 of general intent for the requisite mens rea. We affirm.
9 BACKGROUND
10 In August 2007, Defendant went voluntarily to the sex offender division of the
11 Sheriff’s Department in San Juan County, New Mexico. He provided Detective John
12 Myers, the sex offender compliance coordinator, with conviction information from
13 Florida where Defendant had been convicted of lewd and lascivious molestation of a
14 child, pursuant to a plea of nolo contendere. Based on the conviction information
15 provided by Defendant, Detective Myers advised Defendant that he would be required
16 to register as a sex offender, in person, every ninety days. Defendant continued to
17 register as required through October 2008. At his October 2008 registration,
18 Defendant was advised that he was required to register again in January 2009. In
19 January 2009, Defendant failed to register and was no longer in compliance with the
2
1 ninety-day requirement in Section 29-11A-4(L)(1). Based on Defendant’s failure to
2 register in January, the State filed a criminal complaint indicating that “on[] about or
3 between February [1], 2009[,] through February [4], 2009[,]” Defendant “willfully
4 fail[ed] to comply with the sex offender registration requirements of Section 29-11A-
5 4[.]” An arrest warrant was issued on February 5, 2009. Detective Myers stated in
6 the affidavit for arrest warrant that “as of [February 4, 2009] it ha[d] been
7 approximately [ninety-six] days since [Defendant] last registered as required by New
8 Mexico registration laws.” Defendant was arrested pursuant to the arrest warrant on
9 February 7, 2009. On February 11, 2009, Defendant voluntarily contacted Detective
10 Myers and registered. From February 11, 2009, until the time of trial, Defendant
11 remained compliant with the registration requirements.
12 At Defendant’s bench trial in September 2009 the district court admitted State’s
13 Exhibit 1, a packet comprised of a court file from Lake County, Florida, indicating
14 that Defendant was a convicted sex offender. The court found Defendant guilty of one
15 count of failure to register as a sex offender contrary to Section 29-11A-4(N).
16 On appeal, Defendant seeks reversal of his conviction. He argues that the
17 district court erred in admitting the Florida court file, which he contends constituted
18 untrustworthy and prejudicial evidence. Defendant also claims that the State failed
19 to prove that he was a sex offender under New Mexico law and, therefore, failed to
3
1 prove he was required to register as a sex offender. Finally, Defendant argues that the
2 district court applied an improper standard of proof with regard to the mens rea
3 requirement of SORNA. After examining each of Defendant’s arguments, we affirm.
4 Admission of the Florida Documents
5 Defendant contends that he was prejudiced by the district court’s admission of
6 the Lake County, Florida court file that indicated Defendant was adjudged a sex
7 offender, because the documents constituted “untrustworthy evidence.” Defendant
8 argues that the documents were hearsay that did not fit within a recognized hearsay
9 exception, that the documents were admitted without proper foundation, and that their
10 admission violated his right to confrontation. We examine each of these arguments
11 in turn.
12 We review a district court’s decision to admit or exclude evidence for abuse of
13 discretion. State v. Johnson, 2010-NMSC-016, ¶ 40, 148 N.M. 50, 229 P.3d 523. We
14 review the constitutional question of whether Defendant’s right to confrontation was
15 violated de novo. See State v. Bullcoming, 2010-NMSC-007, ¶ 41, 147 N.M. 487, 226
16 P.3d 1, cert. granted, 131 S. Ct. 62 (No. 09-10876, Sept. 28, 2010).
17 In regard to Defendant’s argument that the documents in question did not fit
18 within a recognized hearsay exception, the State maintains that the documents were
19 admissible under several exceptions to the rule against hearsay. To the extent that the
4
1 State argues the applicability of Rule 11-803(H) NMRA, we agree. Rule 11-803
2 states, in part:
3 The following are not excluded by the hearsay rule, even though
4 the declarant is available as a witness:
5 ....
6 H. Public records and reports. Records, reports,
7 statements[,] or data compilations, in any form, of public offices or
8 agencies, setting forth
9 (1) the activities of the office or agency,
10 (2) matters observed pursuant to duty imposed by law as
11 to which matters there was a duty to report, excluding, however, in
12 criminal cases matters observed by police officers and other law
13 enforcement personnel[.]
14 In State v. Gallegos, this Court applied the applicable version of Rule 11-
15 803(H) in affirming the admissibility of exhibits which, as here, included court
16 documents in the defendant’s prior criminal cases. 91 N.M. 107, 111, 570 P.2d 938,
17 942 (Ct. App. 1977) (stating that the defendant’s argument that exhibits in the form
18 of authenticated copies of judgments in prior criminal cases were improperly admitted
19 was without merit and explaining that the documents were admissible). See generally
20 State v. O’Kelley, 118 N.M. 52, 56, 878 P.2d 1001, 1005 (Ct. App. 1994) (stating that
21 Rule 11-803(8), as cited in Gallegos, was changed to Rule 11-803(H)). Thus, the
5
1 Florida court documents, which included the judgment indicating that Defendant was
2 a convicted sex offender, were admissible under Rule 11-803(H).
3 Next we examine whether there existed a proper foundation for the admission
4 of the documents. Defendant argues that the documents are not self-authenticating
5 under New Mexico Rules of Evidence and, therefore, without a proponent to testify
6 as to their authenticity, they were inadmissible. We disagree.
7 Rule 11-902 NMRA, Self-authentication, states in part:
8 Extrinsic evidence of authenticity as a condition precedent to
9 admissibility is not required with respect to the following:
10 A. Domestic public documents under seal. A document
11 bearing a seal purporting to be that of the United States, or of any state,
12 district, commonwealth, territory[,] or insular possession thereof, . . . or
13 of a political subdivision, department, officer[,] or agency thereof, and
14 a signature purporting to be an attestation or execution[.]
15 The Lake County, Florida court file contained, among other things, a copy of
16 a judgment that indicated Defendant had been convicted of “lewd/lascivious
17 molestation of [a] child,” as well as a copy of the criminal information that supported
18 the Florida conviction. Each separate document in the packet bore the seal of the
19 Circuit Court Clerk of Lake County, Florida, and an original signature of a deputy
20 clerk, and the date of certification.
21 Defendant argues that the Lake County seal is insufficient under Rule 11-902
22 because it is not the official seal of the State of Florida. However, this Court has
6
1 previously held documents to be certified pursuant to Rule 11-902(B) where “[t]hey
2 [had] the district court seal and the signature of a deputy clerk on them or on an
3 attachment to them.” State v. Griffin, 108 N.M. 55, 59, 766 P.2d 315, 319 (Ct. App.
4 1988); see Bardacke v. Dunigan, 98 N.M. 473, 476, 649 P.2d 1386, 1389 (1982)
5 (explaining that certificates which had been signed by the county clerk, or his or her
6 deputy, and upon which a county seal had been affixed were considered self-
7 authenticating under Rule 11-902(1) (current version at Rule 11-902(A)).
8 This Court has also affirmed the admission of exhibits in the form of certified
9 copies of court records under Rule 11-1005 NMRA. State ex rel. Bardacke v. Welsh,
10 102 N.M. 592, 598, 698 P.2d 462, 468 (Ct. App. 1985) (affirming the admission,
11 under Rules 11-1005 and 11-902(4) (current version at Rule 11-902(D)), of court
12 records that had been certified by the Bernalillo County District Court Clerk). Rule
13 11-1005 states, in pertinent part, that “[t]he contents of an official record, or of a
14 document authorized to be recorded or filed and actually recorded or filed, including
15 data compilations in any form, if otherwise admissible, may be proved by copy,
16 certified as correct in accordance with Rule 11-902[.]” Here, as in Welsh, the certified
17 copies of documents contained in Defendant’s Florida court file were admissible. See
18 102 N.M. at 598, 698 P.2d at 468.
7
1 Defendant relies on State v. Tom, 2010-NMCA-062, 148 N.M. 348, 236 P.3d
2 660, to argue that because the State did not present a witness or evidence to prove that
3 the Florida court certification was genuine, admission of the documents was
4 erroneous. Defendant’s reliance on Tom is misplaced. The foundational requirements
5 at issue in Tom were related to the admission of breath-alcohol test results. Id. ¶¶ 5,
6 11. Admission of breath-alcohol results is conditioned upon a showing that the
7 machine used for administering the breath test meets the certification standards of the
8 Department of Health. Id. ¶ 12. Documents under seal from a court in another state
9 are a different matter.
10 We disagree with Defendant’s argument that the facts in Tom relating to
11 foundational requirements are analogous to the facts in this case. As we have already
12 indicated through Bardacke and Griffin, a document exhibiting a county seal or a
13 document bearing the seal of a district court and the signature of a clerk or a deputy
14 clerk, are self-authenticating. Bardacke, 98 N.M. at 476, 649 P.2d at 1389; Griffin,
15 108 N.M. at 59, 766 P.2d at 319. Self-authenticating documents do not require
16 extrinsic evidence of authenticity. Rule 11-902. Thus, we hold that the district court
17 did not abuse its discretion by admitting court documents related to the Florida
18 conviction.
8
1 As to his right to confrontation, Defendant argues that “[w]hile a record of a
2 conviction may not be prepared solely for later prosecution, such a document is a
3 testament, declared by the court creating it,” that a defendant was convicted of a sex
4 offense. He reasons that the court clerk who created the file could reasonably have
5 expected that the record would be used in future prosecutions of crimes such as failure
6 to register as a sex offender. Consequently, he argues, the record is testimonial.
7 Under the Confrontation Clause, “testimonial hearsay is barred . . . unless the
8 declarant is unavailable and the defendant had a prior opportunity for cross-
9 examination.” State v. Aragon, 2010-NMSC-008, ¶ 6, 147 N.M. 474, 225 P.3d 1280.
10 While the United States Supreme Court has not provided a comprehensive definition
11 of the term “testimonial,” the New Mexico Supreme Court stated, “[o]ne concise
12 definition consistent with the various formulations and historical analysis [defining
13 the meaning of “testimonial” is], involvement of government officers in the
14 production of testimony with an eye toward trial, because this provides a unique
15 potential for prosecutorial abuse.” State v. Dedman, 2004-NMSC-037, ¶ 29, 136
16 N.M. 561, 102 P.3d 628, overruled on other grounds by Bullcoming, 2010-NMSC-
17 007 (alteration omitted) (internal quotation marks and citation omitted). Generally,
18 “public records are . . . admissible absent confrontation, not only because they qualify
19 under an exception to the hearsay rules, but because they are not testimonial, having
9
1 been created for the administration of an entity’s affairs and not for the purpose of
2 establishing or proving some fact at trial.” Aragon, 2010-NMSC-008, ¶ 18 (alteration
3 omitted) (emphasis omitted) (internal quotation marks and citation omitted).
4 In this case, the Florida court file was not testimonial. Not only did the file
5 qualify under an exception to the hearsay rule, it was not prepared “with an eye
6 toward trial” in the present matter. Although some of the documents contained in the
7 file may have been prepared in preparation for the Florida case, here, the court file
8 was presented as public record evidence and was therefore admissible. Defendant
9 fails on appeal to argue that any particular document within the file or upon which the
10 district court may have relied in making its judgment, constituted testimonial
11 evidence. The two documents that supported the district court’s determination, the
12 judgment and the criminal information, were not testimonial. Thus, we hold that the
13 file was properly admitted.
14 Sufficiency of the Evidence
15 Defendant next contends that the State failed to prove that he was a sex offender
16 under New Mexico law and as such was required to register under SORNA. Defendant
17 asserts that it was therefore “legally impossible for the district court to convict him”
18 of violating SORNA.
10
1 “Where . . . a defendant asserts that the [prosecution] failed to prove all the
2 elements of the crime charged, the question on appeal is whether the [fact finder’s
3 judgment] is supported by sufficient evidence.” State v. Burke, 2008-NMSC-052,
4 ¶ 12, 144 N.M. 772, 192 P.3d 767. In making a determination regarding sufficiency
5 of the evidence, we view the evidence in the light most favorable to the verdict. State
6 v. Billington, 2009-NMCA-014, ¶ 9, 145 N.M. 526, 201 P.3d 857. By indulging all
7 reasonable inferences and resolving all conflicts in favor of the verdict, we determine
8 whether the evidence could justify a finding by a rational fact finder that each element
9 of the crime was established beyond a reasonable doubt. Id. Providing there exists
10 sufficient evidence to support the verdict, the appellate courts will not substitute its
11 judgment for that of the fact finder. State v. Chavez, 2009-NMSC-035, ¶ 11, 146
12 N.M. 434, 211 P.3d 891. Section 29-11A-3 provides definitions as used in SORNA.
13 Section 29-11A-3(E) defines “sex offense” as “any [sex offense statutorily recognized
14 under New Mexico law] or their equivalents in any other jurisdiction[.]” One
15 definition of “sex offender” is “a person who . . . changes residence to New Mexico,
16 when that person has been convicted of a sex offense pursuant to state, federal,
17 tribal[,] or military law[.]” Section 29-11A-3(D)(2).
18 In this case, the State presented evidence that (1) Defendant was a convicted sex
19 offender in Florida; (2) that Defendant was a resident of New Mexico when he was
11
1 charged with and tried for violating Section 29-11A-4(N); and (3) the criminal
2 information underlying the Florida conviction indicated that Defendant approached
3 a fifteen-year-old girl, armed with a hammer, which he wielded threateningly and,
4 under the guise of that threat, intentionally touched in a lewd or lascivious manner the
5 clothing covering the victim’s breasts and/or the clothing covering her buttocks.
6 Our criminal sexual contact of a minor statute, NMSA 1978, § 30-9-13 (2003),
7 provides, in pertinent part:
8 A. Criminal sexual contact of a minor is the unlawful and
9 intentional touching of or applying force to the intimate parts of a minor
10 . . . . For the purposes of this section, “intimate parts” means . . .
11 buttocks . . . or breast.
12 ....
13 D. Criminal sexual contact of a minor in the fourth degree
14 consists of all criminal sexual contact:
15 (1) . . . of a child thirteen to eighteen years of age
16 perpetrated with force or coercion[.]
17 Thus, in New Mexico, if Defendant committed a similar act as that which led
18 to his conviction in Florida, he would have been guilty of criminal sexual contact of
19 a minor and thereby required to register as a sex offender under SORNA. See § 29-
20 11A-4(A) (mandating a sex offender’s registration with the county sheriff for the
21 county in which the sex offender resides).
12
1 Defendant urges us to consider the possibility that the facts relied on by the
2 Florida court in accepting Defendant’s plea could have materially differed from the
3 facts alleged in the criminal information. Doing so, however, is contrary to our
4 standard of review, as we must indulge all reasonable inferences and resolve all
5 conflicts in favor of the judgment. Billington, 2009-NMCA-014, ¶ 9. It was
6 reasonable in this case for the district court to infer that there was no material
7 difference between the facts that Defendant pleaded to in Florida and those contained
8 in the criminal information. We thereby reject Defendant’s assertion that “no rational
9 fact finder could have found beyond a reasonable doubt” that Defendant was a sex
10 offender, subject to SORNA.
11 SORNA’s Mens Rea Requirement
12 Defendant’s final argument is that the court erred in applying a strict liability
13 standard to the crime of failure to register as required by SORNA. Defendant asserts
14 that his registering on February 11, 2009, albeit late, was evidence that he lacked the
15 requisite intent to not register. While Defendant concedes that the district court did
16 not enter any formal finding explaining what standard of proof it applied in reaching
17 its verdict, he points to the court’s verbal comment that failure to register “very well
18 may be a strict liability crime.” And, based on this statement, Defendant contends that
13
1 the district court’s judgment was compromised as it was based on a misapprehension
2 of SORNA’s mens rea requirement.
3 The standard of review used by this Court for questions of statutory
4 interpretation is de novo. Billington, 2009-NMCA-014, ¶ 8. We must carry out the
5 legislative intent of a statute by looking to the plain meaning of its language and
6 “according to its obvious spirit or reason.” Id. (internal quotation marks and citation
7 omitted).
8 Here, the Legislature’s intent to impose a mens rea requirement is evidenced
9 by SORNA’s phrasing. Section 29-11A-4(N) reads, in pertinent part, that “[a] sex
10 offender who willfully or knowingly fails to comply with the registration requirements
11 set forth in this section is guilty of a fourth degree felony[.]” (Emphasis added.) See
12 Billington, 2009-NMCA-014, ¶ 13 (“The requirement of willfulness in [a] statute
13 establishes an element of mens rea.”).
14 In Billington, this Court examined the willfulness requirement as it pertains to
15 failure to register under SORNA. Id. ¶¶ 10-21. As explained in Billington, to be
16 found guilty of violating SORNA “a defendant must have known that he was required
17 to register [periodically] . . . , and . . . did not do so despite this knowledge.” Id. ¶ 13.
18 In this case, the State presented evidence of Defendant’s knowledge of the
19 ninety-day registration requirement through the testimony of Detective Myers. In
14
1 compliance with the registration requirement, which was explained to Defendant at
2 his first meeting with Detective Myers, Defendant registered and continued to comply
3 with the required ninety-day registration through October 2008. When Defendant
4 completed his October 2008 registration, he was advised that he needed to register
5 again in January 2009.
6 Further evidence of Defendant’s knowledge of the ninety-day registration
7 requirement consisted of the State’s Exhibit 2, entitled Conditions For Sex Offender
8 Registrations, which Defendant signed. The exhibit also showed Defendant’s initials
9 next to each requirement including “[m]ust register once every [ninety] days[.]”
10 Detective Myers testified that he witnessed Defendant signing this document at his
11 initial registration in August 2007.
12 There is nothing in the record to indicate that the court’s judgment was based
13 on strict liability. It is well established that this Court will not consider arguments of
14 counsel that are unsupported in the record. See Muse v. Muse, 2009-NMCA-003,
15 ¶ 51, 145 N.M. 451, 200 P.3d 104. The district court’s mere reference to a possibility
16 that failure to register may be a strict liability offense does not mean that the judgment
17 was in error. Even if we were to construe the court’s judgment to be based on a strict
18 liability concept, an appellate court “may uphold the [district court’s] decision if it
19 was right for any reason.” State v. Macias, 2009-NMSC-028, ¶ 17, 146 N.M. 378,
15
1 210 P.3d 804. The State presented sufficient evidence to prove that Defendant knew
2 he was required to register every ninety days and, despite this knowledge, he failed
3 to do so. Therefore, notwithstanding the possibility that the district court based its
4 determination of Defendant’s guilt on an improper standard of proof, we hold that the
5 judgment was correct.
6 CONCLUSION
7 We Affirm.
8 IT IS SO ORDERED.
9 __________________________________
10 JONATHAN B. SUTIN, Judge
11 WE CONCUR:
12 __________________________________
13 CYNTHIA A. FRY, Judge
14 __________________________________
15 RODERICK T. KENNEDY, Judge
16