State v. Hall

I attest to the accuracy and
integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'05- 14:24:37 2013.01.16
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number: 2013-NMSC-001
Filing Date: December 5, 2012
Docket No. 32,943
STATE OF NEW MEXICO,
Plaintiff-Petitioner,
v.
BRUCE HALL,
Defendant-Respondent.
ORIGINAL PROCEEDING ON CERTIORARI
Douglas Driggers, District Judge
Gary K. King, Attorney General
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 NMSA 1978, Section 29-
11A-4(N) (2005). The New Mexico Sex Offender Registration and Notification Act
(SORNA), NMSA 1978, §§ 29-11A-1 to -10 (1995, as amended through 2007), requires a
person convicted of any of twelve enumerated sex offenses, or who is convicted of an
equivalent offense in any other jurisdiction, to register as a sex offender with the county
1
sheriff for the New Mexico county in which that person resides. What constitutes an
equivalent offense and how a court makes such a determination are the subjects of this
opinion. We hold that an offense is “equivalent” to a New Mexico offense, for purposes of
SORNA, if the defendant’s actual conduct that gave rise to the out-of-state conviction would
have constituted one of the twelve enumerated offenses requiring registration pursuant to
SORNA. When the defendant’s out-of-state conviction results from a plea agreement, courts
may look to the charging documents, the defendant’s written plea agreement, and the
transcript of the plea hearing to determine the defendant’s actual conduct and whether such
conduct would have constituted one of the twelve enumerated offenses.
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. Cal. Penal Code § 647.6(a)(1) (West 1995). As a result
of this conviction, Hall was required to register as a sex offender in California.
{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 Section 29-11A-4(N).
{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
1
The conditional plea agreement states that it is conditional on the appeal of a motion
to suppress, but the only motion that appears in the record is a motion to dismiss.
2
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. Rule 12-501
NMRA.
DISCUSSION
{6} “A sex offender residing in this state shall register with the county sheriff for the
county in which the sex offender resides.” Section 29-11A-4(A). A “sex offender” includes
a person who “changes residence to New Mexico, when that person has been convicted of
a sex offense” in another jurisdiction. Section 29-11A-3(D)(2). “Sex offense” is defined as
any of twelve enumerated New Mexico offenses “or their equivalents in any other
jurisdiction.” Section 29-11A-3(E).
{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
3
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.”
Section 29-11A-2(B). The Legislature has found that “sex offenders pose a significant risk
of recidivism,” and “the efforts of law enforcement agencies to protect their communities
from sex offenders are impaired by the lack of information available concerning convicted
sex offenders who live within the agencies’ jurisdictions.” Section 29-11A-2(A)(1)-(2).
Therefore, SORNA requires every sex offender to provide local law enforcement with
comprehensive personal information including the offender’s name, date of birth, social
security number, address, and place of employment, as well as physical information
including fingerprints and a DNA sample. Section 29-11A-4(B), (E). Other than the sex
offender’s social security number and DNA profile, all of this information is provided to
schools and day care centers within one mile of the offender’s residence, and most of the
information is available to the public on the internet. Section 29-11A-5.1(D), (E).
{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”
4
must be over the age of eighteen. Compare 2004 N.M. Laws, ch. 1, § 10(A) (Spec. Sess.
2003) (“‘[S]ex offender’ means a person eighteen years of age or older who . . .”), with 2005
N.M. Laws, ch. 279, § 1(D) (“‘[S]ex offender’ means a person who . . .”). In addition, the
registry website, previously an optional resource provided by the Department of Public
Safety, became mandatory. 2005 N.M. Laws, ch. 279, § 5(E).
{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 NMSA 1978, § 12-
2A-18(A)(2) (1997) (A statute should be construed to “give effect to its entire text.”); Leyba
v. Renger, 114 N.M. 686, 688, 845 P.2d 780, 782 (1992) (“When the legislature enacts a new
statute, we presume that it intended to establish new law or to change law as it previously
existed.”); In re Estate of Greig, 107 N.M. 227, 229, 755 P.2d 71, 73 (Ct. App. 1988)
(“Courts assume that the legislature will not enact useless statutes or amendments.”). The
shift from a discrete list of offenses to a list of offenses and their equivalents must logically
have expanded rather than contracted the scope of registrable conduct.
{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
5
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
6
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.
Id. at 1139.
{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), 18 U.S.C. § 924(e)(1) (2000). ACCA provides for a fifteen-year
mandatory minimum sentence for a defendant who illegally possesses a firearm after three
previous convictions “for a violent felony or a serious drug offense.” Id. Depending on the
circumstances, the crime of burglary might or might not be considered a “violent felony.”
Shepard v. United States, 544 U.S. 13, 15-16 (2005). Although the Supreme Court has
generally taken a categorical approach to ACCA sentencing, it has also held that a
sentencing court may look at the charging document and jury instructions from a prior
burglary conviction in order to ascertain the circumstances of the defendant’s offense and
determine whether or not the defendant should be sentenced as an “armed career criminal.”
Taylor v. United States, 495 U.S. 575, 602 (1990). The Court has subsequently expanded
that analysis to allow courts to consult
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.
7
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, 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., Ind. Code Ann. § 11-8-8-5(b)(1) (West
2012) (The term “sex or violent offender” includes “a person who is required to register as
a sex or violent offender in any jurisdiction.”); Mont. Code Ann. § 46-23-502(9)(b) (2007)
(A “sexual offense” includes “any violation of a law of another state, a tribal government,
or the federal government that is reasonably equivalent to a violation listed in subsection
(9)(a) or for which the offender was required to register as a sexual offender after an
adjudication or conviction.” (emphasis added)). This type of provision is an option for New
Mexico as well. If the Legislature is concerned about adopting other states’ registry
requirements wholesale, it could also allow an affirmative defense for sex offenders whose
actual conduct in the foreign state would not have constituted a registrable offense in New
Mexico. See, e.g., S.C. Code Ann. § 23-3-430(A) (2010) (A person convicted in a foreign
country may raise defense that “the offense . . . was not equivalent to any offense in this
State for which he would be required to register.”). For a summary of the statutes and case
law dealing with registration of out-of-state sex offenders in various states, see Tracy
Bateman Farrell, Validity, Construction, and Application of State Statutory Requirement that
Person Convicted of Sexual Offense in Other Jurisdiction Register or Be Classified as
Sexual Offender in Forum State, 34 A.L.R. 6th 171 §§ 25-26 (2008).
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
2
The State has suggested that “annoying or molesting” a child is equivalent to
criminal sexual contact of a minor in the fourth degree, rather than third. However, this
analysis appears to be in error. The State alleges that Hall inappropriately touched several
8
NMSA 1978, § 30-9-13(A), (C)(1) (2003); see also UJI 14-925 NMRA & Use Note
(defining elements of criminal sexual contact with a minor under the age of thirteen,
including list of intimate parts).
{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 Section 30-9-13(C)(1), nor has the State established the aggravating
factors that are necessary to prove criminal sexual contact of a minor in the third or fourth
degree under an alternative theory. See § 30-9-13(C)(2), (D). Furthermore, under any
theory of criminal sexual contact of a minor, the crime requires touching of “intimate parts,”
defined as “the primary genital area, groin, buttocks, anus or breast.” Section 30-9-13(A).
“Primary genital area” is defined elsewhere in New Mexico statutes as “the mons pubis,
penis, testicles, mons veneris, vulva or vagina.” NMSA 1978, §§ 30-9-14(B), 30-9-14.3(B)
(1996). The State has not established where on their bodies Hall touched the California
victims, saying only that he touched their clothed “private parts.”
{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
young boys outside their clothing as he held them up to look into a camera’s viewfinder. If
the boys were under the age of thirteen, which seems likely if Hall physically picked them
up, that could constitute criminal sexual contact of a minor in the third degree under Section
30-9-13(C)(1). Criminal sexual contact of a minor in the fourth degree applies to sexual
contact with children thirteen to eighteen years old where there is either force or coercion,
Section 30-9-13(D)(1), or where the perpetrator is an employee at the child’s school, Section
30-9-13(D)(2). Given that the State has not described either of these circumstances, we
construe the State to mean that Hall committed the equivalent of criminal sexual contact of
a minor in the third, rather than the fourth, degree.
9
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 U.S. Const. art. IV, § 1; N.M. Const. art. IV, § 1. We reject this
argument. Registration pursuant to SORNA is a matter of New Mexico law, even if it rests
upon a conviction in a foreign jurisdiction. Hall has been duly convicted, sentenced, and
punished in California, and we show the State of California no disrespect by independently
evaluating our state’s interest in having Hall register as a sex offender in New Mexico. We
have found no indication that other states analyze registration for out-of-state sex offenses
through the lenses of comity or full faith and credit, and nothing in New Mexico law requires
that we interpret this issue any differently.
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
____________________________________
10
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
11