James Bullard Minter v. The State of Wyoming

IN THE SUPREME COURT, STATE OF WYOMING
2023 WY 35APRIL TERM, A.D. 2023
April 21, 2023
JAMES BULLARD MINTER,
Appellant
(Petitioner),
v. S-22-0209
THE STATE OF WYOMING,
Appellee
(Respondent).
Appeal from the District Court of Natrona County
The Honorable Daniel L. Forgey, Judge
Representing Appellant:
Ryan A. Semerad, The Fuller & Semerad Law Firm, Casper, Wyoming.
Representing Appellee:
Bridget Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Kristen
R. Jones, Senior Assistant Attorney General; Kellsie J. Singleton, Senior Assistant
Attorney General.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are
requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of
any typographical or other formal errors so that correction may be made before final publication in the
permanent volume.
FOX, Chief Justice.
[¶1] James Bullard Minter pled guilty in 1999 to misdemeanor sexual battery in
Georgia. In 2019, Mr. Minter was living in Casper, Wyoming when a federal agency
informed the Wyoming Division of Criminal Investigation (DCI) that it had intercepted a
firearm suppressor addressed to Mr. Minter. DCI performed a background check on Mr.
Minter and discovered his Georgia conviction. Even though DCI had insufficient
information that the crime Mr. Minter was convicted of qualified as a “registerable
offense” under the Wyoming Sex Offender Registration Act, it directed the Natrona
County Sheriff’s Office to inform Mr. Minter that his conviction required him to register
as a sex offender in Wyoming.
[¶2] Mr. Minter registered as directed but filed a petition in district court seeking relief
from the requirement, which the court granted. DCI then intervened and moved for relief
from the judgment. The court vacated its judgment and granted DCI summary judgment,
holding Mr. Minter’s misdemeanor conviction in Georgia was the equivalent of felony
second-degree sexual abuse of a minor in Wyoming and required that he register. We
reverse.
ISSUES
[¶3] We restate the issues as:
1. May DCI rely on dismissed charges to determine the facts
or circumstances out of which an alleged sex offender’s
conviction arose?
2. May DCI require someone to register as a sex offender
before it determines he or she has been convicted of a
registerable offense?
FACTS
[¶4] In 1998, James Minter was living in Georgia. On March 16, 1998, a grand jury for
Effingham County, Georgia indicted Mr. Minter on one count of felony child
molestation. The indictment read:
[T]he said James Bullard Minter, on January 16, 1998 in the
county aforesaid, did then and there unlawfully an immoral
and indecent act, to wit: did rub the genital area of, [DW], a
child under 16 years of age, with intent to arouse and satisfy
the sexual desires of said accused, contrary to the laws of this
state[.]
1
[¶5] Mr. Minter pled not guilty to the child molestation charge. On December 30, 1999,
the State of Georgia offered him a plea agreement by which it would reduce the charge
against him to misdemeanor sexual battery, and the parties would jointly recommend a
sentence of twelve months with credit for time served. Mr. Minter agreed and completed
a sworn statement, which contained no facts concerning his crime and stated, “I plead
Guilty to Sexual Battery O.C.G.A. 16-6-22.1.” A Georgia court accepted Mr. Minter’s
plea to the lesser charge and sentenced him to twelve months confinement with credit for
time served.
[¶6] Mr. Minter did not register as a sex offender in Georgia. No law enforcement
agency notified him of an obligation to register there, and he believed he was not required
to register based on his misdemeanor conviction. In response to an inquiry by DCI, a
Georgia official confirmed that Mr. Minter was not on the Georgia registry of offenders.
[¶7] In August 2007, Mr. Minter moved to Gillette, Wyoming. When he arrived in
Wyoming, he researched his obligation to register as a sex offender and found a
Wyoming Supreme Court case that he read as saying only those convicted of a felony sex
offense had to register in Wyoming.1 Because he was not convicted of a felony, Mr.
Minter believed he was not required to register in Wyoming.
[¶8] In 2010, Mr. Minter relocated to Natrona County. On December 5, 2019, a United
States Customs and Border Protection agent notified DCI that it had intercepted a firearm
suppressor addressed to Mr. Minter. On December 12, 2019, the supervisor of DCI’s Sex
Offender Registration Unit, emailed the following message to the Natrona County
Sheriff’s Office:
HSI [Homeland Security Investigations] informed me that
there is a sex offender in Natrona County that is not
registering. I ran a criminal history and he does have two sex
offenses out of GA. I spoke to the AG office and they
recommend that he register until we can get court documents.
Even though it is a misdemeanor he will still have to register.
For sex offeneses (sic) it do[es] not matter if it was a felony
or misdemeanor they register. Can you please contact him
and let him know he needs to register[?]
1
The case Mr. Minter read was Snyder v. State, 912 P.2d 1127, 1129 (Wyo. 1996), which stated that
“[u]nder the Act, a sex offender who must register is any person who has been convicted of certain felony
sex offenses in which the victim was less than sixteen years of age and the offender was at least four years
older than the victim, and that conviction occurred after January 1, 1985.”
2
[¶9] A lieutenant with the Natrona County Sheriff’s Office responded:
I came in contact with James Bullard Minter and he was
leaving for ND. I asked when he will be back and he
informed me that it would be December 26th. I advised Mr.
Minter that he will have to register in WY and the WY
Attorney General Office will determine if he has to register in
WY. He said he would be in December 27th and I advised him
we will process him which will be the paperwork, prints, and
DNA at that time.
[¶10] Mr. Minter kept his appointment with the Sheriff’s Office and did what was asked
of him. This included completing a “State of Wyoming Sex Offender Registration
Offender Information Form,” on which he reported that the age of his sexual battery
victim was nine. On January 2, 2020, DCI sent Mr. Minter a document informing him the
Attorney General’s Office had conducted a legal review of his conviction and concluded
his Georgia conviction was equivalent to the Wyoming offense of felony second-degree
sexual abuse of a minor. The document also advised him of his registration obligations.
[¶11] In April 2020, Mr. Minter filed a petition in district court seeking relief from the
requirement that he register as a sex offender. He asserted his Georgia conviction was the
equivalent of sexual battery under Wyoming law, which is an offense that does not
require registration. Alternatively, he contended the comparable Wyoming offense would
be third-degree sexual abuse of a minor, an offense that allows for relief from registration
after ten years of registration. The State of Wyoming, through the Natrona County
District Attorney’s Office, joined Mr. Minter’s petition. It asserted that “[b]ased on the
information the State has it is incredibly difficult to know what the facts or circumstances
of Petitioner’s conviction were.” It contended it therefore had to rely on an elements
comparison to determine the equivalent Wyoming offense, which it agreed was sexual
battery. It further asserted:
Finally, a review of Petitioner’s criminal history
indicates that he has had no criminal activity or convictions
since serving his sentence in Georgia. For twenty years he has
remained a law abiding citizen. To require him to register 20
years later with no further criminal involvement seems unjust.
[¶12] On July 20, 2020, the district court granted Mr. Minter’s petition. It concluded that
insufficient information was available to consider the facts and circumstances of his
Georgia conviction. It therefore looked to the elements and determined that the
equivalent Wyoming offense was sexual battery. Because sexual battery is not a
registerable offense, the court ordered that Mr. Minter shall have no further duty to
register as a sex offender.
3
[¶13] DCI moved to intervene and for relief from the district court’s judgment pursuant
to W.R.C.P. 60(b)(1), and the court granted both motions. Mr. Minter then filed an
amended petition for declaratory relief seeking a declaration that his Georgia conviction
did not require registration in Wyoming, that DCI was estopped from requiring him to
register, and that DCI’s actions violated the Full Faith and Credit Clause of the United
States Constitution. The parties thereafter completed discovery and filed cross-motions
for summary judgment.2
[¶14] In support of its summary judgment motion, DCI contended it was statutorily
authorized to require Mr. Minter to register based on the facts and circumstances of his
crime. It argued Mr. Minter had admitted the age of his victim, nine, and based on the
victim’s age, his sexual battery conviction was the same or similar to second-degree
sexual abuse of a minor, in violation of Wyo. Stat. Ann. § 6-2-315(a)(ii). 3
[¶15] In support of his summary judgment motion, Mr. Minter argued DCI exceeded its
authority when it required him to register without knowledge he had been convicted of a
registerable offense. He further contended DCI improperly relied on the information Mr.
Minter provided on his registration form, both because it should not have compelled him
to supply it, and because it went beyond the actual elements, facts, or circumstances out
of which his conviction arose. He also pointed out that the Wyoming offense of second-
degree sexual abuse of a child is a specific intent crime, whereas the Georgia offense of
sexual battery to which he pled guilty is a general intent crime.
[¶16] The district court granted DCI summary judgment. It concluded Mr. Minter’s
criminal history report, which referenced a child molestation charge without indicating its
disposition, gave DCI grounds to require Mr. Minter to register pending its receipt of
additional information. It further concluded that the age of Mr. Minter’s victim was a fact
or circumstance of his crime and DCI properly considered it when determining the
equivalent Wyoming offense. Mr. Minter timely appealed to this Court.
2
Mr. Minter did not appeal the district court’s rulings on his estoppel and full faith and credit claims, and
we therefore need not discuss the parties’ summary judgment arguments on those claims.
3
The Georgia offense of sexual battery requires proof of three elements: “(1) physical contact with the
victim’s intimate body parts; (2) intent to have such contact; and (3) lack of consent on the part of the
victim.” Nembhard v. State, 859 S.E.2d 118, 121 (Ga. Ct. App. 2021) (quoting Watson v. State, 777
S.E.2d 677, 678 (Ga. Ct. App. 2015)). Second-degree sexual abuse of a minor, in violation of § 6-2-
315(a)(ii), requires proof that “[b]eing sixteen (16) years of age or older, the actor engage[d] in sexual
contact of a victim who is less than thirteen (13) years of age.” “Sexual contact” means “touching, with
the intention of sexual arousal, gratification or abuse, of the victim’s intimate parts by the actor, or of the
actor’s intimate parts by the victim, or of the clothing covering the immediate area of the victim’s or
actor’s intimate parts.” Wyo. Stat. Ann. § 6-2-301(a)(vi) (2021).
4
STANDARD OF REVIEW
[¶17] “Summary judgment is ‘an appropriate resolution of a declaratory judgment
action’ when there are no genuine issues of material fact.” CIBC Nat’l Tr. Co. v.
Dominick, 2022 WY 60, ¶ 14, 509 P.3d 908, 911 (Wyo. 2022) (quoting Holding v.
Luckinbill, 2022 WY 10, ¶ 11, 503 P.3d 12, 16 (Wyo. 2022)). As with any summary
judgment, our review is de novo. Id. at ¶ 15, 509 P.3d at 911.
[¶18] The parties agree there are no disputed issues of material fact and that resolution
of this appeal depends on our interpretation of the Wyoming Sex Offender Registration
Act (WSORA or Act). Questions of statutory interpretation are questions of law that we
likewise consider de novo. Int. of RH v. State, 2022 WY 33, ¶ 7, 505 P.3d 205, 207
(Wyo. 2022) (citing Matter of Adoption of ATWS, 2021 WY 62, ¶ 8, 486 P.3d 158, 160
(Wyo. 2021)).
DISCUSSION
[¶19] The Act establishes three levels of offender registration depending on the
seriousness of the convicted offense. Wyo. Stat. Ann. § 7-19-302(g) through (j) (2021). It
charges DCI with the task of maintaining the central registry and determining the level at
which an offender must register. Wyo. Stat. Ann. §§ 7-19-302(o) and 7-19-303(a). The
Act also recognizes there may be instances in which DCI will require additional
information to identify an offender’s crime or equivalent Wyoming offense, and it
provides:
If the division lacks sufficient information or
documentation to identify the offender’s crime for which
convicted or equivalent Wyoming offense, it shall register the
offender as if he were convicted of an offense listed in
subsection (j) of this section. If the division receives
additional verifiable information or documentation that
demonstrates that the offender was not convicted of an
offense specified under subsection (j) of this section or an
offense from any other jurisdiction containing the same or
similar elements or arising out of the same or similar facts or
circumstances, it shall modify the offender’s status.
Wyo. Stat. Ann. § 7-19-302(o) (emphasis added).
[¶20] The district court held subsection 302(o) allowed DCI to require Mr. Minter’s
registration before it had determined he was convicted of a registerable offense. It
reasoned:
5
The Court finds that it was apparent from Mr. Minter’s
criminal history that he was born in 1969. And as an adult, he
was, in 1998, charged with felony child molestation pursuant
to a particular Georgia statute. There was no specific
disposition indicated for this charge, and the particular statute
referenced requires the alleged victim to be under 16 years of
age.
The criminal history also reflected that Mr. Minter had
been convicted of misdemeanor sexual battery pursuant to a
particular Georgia statute in 2000. It was not unreasonable on
this record for DCI to seek additional information or
documentation as to the elements and facts and circumstances
of Mr. Minter’s crime in order to properly identify Mr.
Minter’s crime or its equivalent Wyoming offense,
particularly when Mr. Minter had been charged with
molesting a child under 16 years of age.
[¶21] Mr. Minter claims the district court erred in its interpretation of subsection 302(o)
and that this subsection authorizes DCI to require registration only after it has first
determined that an individual was convicted of a registerable offense. He contends the
sole purpose of subsection 302(o) is to allow DCI to provisionally register a person
convicted of a registerable offense at the level for those convicted of the most serious
offenses (the subsection 302(j) level) until it has verifiable information that the offender
should be registered at a different level. He further argues the court erred in allowing DCI
to rely on conduct for which he was not convicted to determine whether he committed a
registerable offense under the Act.
[¶22] DCI offers two responses. First, it contends that when it directed that Mr. Minter
be ordered to register, it had sufficient information to determine he had committed a
registerable offense based on the dismissed charge of child molestation in his criminal
history report. Second, it argues the district court properly interpreted subsection 302(o)
to allow DCI to require registration before it knows an alleged offender was convicted of
a registerable offense. We will address DCI’s authority in the order of its responses.
I. DCI may not use dismissed charges to determine the facts and circumstances
out of which a conviction arose.
[¶23] DCI’s position that it knew Mr. Minter to be an offender when it required him to
register is based on its assumption that it may rely on a dismissed charge to determine the
facts and circumstances of a conviction. That assumption is flawed.
6
[¶24] Our rules of statutory interpretation govern our reading of the Act. “When
interpreting statutes, we seek the legislature’s intent as reflected in the plain and ordinary
meaning of the words used in the statute, giving effect to every word, clause, and
sentence.” BC-K v. State, 2022 WY 80, ¶ 11, 512 P.3d 634, 638 (Wyo. 2022) (quoting
Bernal-Molina v. State, 2021 WY 90, ¶ 13, 492 P.3d 904, 908 (Wyo. 2021)) (cleaned up).
“The plain, ordinary, and usual meaning of words used in a statute controls in the absence
of clear statutory provisions to the contrary. Where there is plain, unambiguous language
used in a statute there is no room for construction.” Id. (quoting Schneider v. State, 2022
WY 31, ¶ 9, 505 P.3d 591, 594 (Wyo. 2022)). “The ‘omission of words from a statute is
considered to be an intentional act by the legislature, and this [C]ourt will not read words
into a statute when the legislature has chosen not to include them.’” Id. (quoting Hugus v.
Reeder, 2022 WY 13, ¶ 8, 503 P.3d 32, 34 (Wyo. 2022)).
[¶25] Provisions that allow consideration of the conduct underlying a conviction to
determine whether it is a registerable offense are “designed to overcome difficulties
caused by ‘the variations among different jurisdictions in the terminology and
categorizations used in defining sex offenses.’” In re Doe, 855 A.2d 1100, 1104 (D.C.
2004) (quoting Council of the District of Columbia, Comm. on the Judiciary, Report on
Bill 13-350, “The Sex Offender Registration Act of 1999,” at 21 (1999)). The Act’s
language allowing consideration of facts and circumstances to determine an offender’s
crime accomplishes that goal. There is nothing in the Act, however, to suggest the
legislature intended DCI to look beyond the conduct for which an individual was
convicted to build a registerable offense. Indeed, the premise of the Act is to the contrary.
[¶26] The Act requires an “offender” to register, and it defines that term.
“Offender” means a person convicted of a criminal
offense specified in W.S. 7-19-302(g) through (j), 6-2-
702, 6-2-703, 6-2-705 or 6-2-706. “Offender” shall
also include any person convicted:
(A) As an accessory before the fact as provided
in W.S. 6-1-201 for a criminal offense specified
in W.S. 7-19-302(g) through (j), 6-2-702, 6-2-
703, 6-2-705 or 6-2-706;
(B) Of a criminal offense in Wyoming or any
other jurisdiction containing the same or similar
elements, or arising out of the same or similar
7
facts or circumstances, as a criminal offense
specified in W.S. 7-19-302(g) through (j), 6-2-
702, 6-2-703, 6-2-705 or 6-2-706.
Wyo. Stat. Ann. § 7-19-301(a)(viii) (emphasis added); see also Wyo. Stat. Ann. § 7-19-
302(a) (requiring an “offender” to register).
[¶27] As defined by the Act, an offender is a person convicted of a registerable offense,
not one who has merely been charged with a registerable offense. The Act thus imposes
registration requirements based on a conviction, not a charge. See State, Off. of Att’y
Gen., Div. of Crim. Investigation v. Thomason, 2008 WY 143, ¶ 6, 197 P.3d 144, 145
(Wyo. 2008) (“To be subject to the Act, an individual must meet the definition of
‘offender.’”). It follows that the conduct that DCI may consider in determining a
registerable offense must be conduct for which the offender was convicted. Other states
that allow consideration of conduct underlying an offense to determine equivalence have
concluded likewise. See Doe v. Frisz, 643 S.W.3d 358, 362-63 (Mo. 2022) (rejecting
reliance on abandoned pleadings where offender is defined as one convicted of offense);
Smart v. State, 846 S.E.2d 172, 174 (Ga. Ct. App. 2020) (refusing to consider sexual
conduct alleged in a warrant where state failed to prove defendant was convicted of the
conduct); People v. Hinson, 94 N.Y.S.3d 738, 739-40 (N.Y. App. Div. 2019) (where
defendant was indicted on two counts of third-degree rape and pled guilty to one,
government could not rely on indictment to enhance registration based on multiple acts);
State v. Winn, 435 P.3d 1247, 1253-54 (N.M. Ct. App. 2018) (holding presentence report
could not be relied on to determine equivalency where facts in report were not necessarily
found by jury).
[¶28] In State v. Hall, for example, the New Mexico Supreme Court interpreted a
provision of its sex offender registration act that required “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[.]” 294 P.3d 1235, 1236 (N.M. 2012). The
court began its analysis with a recognition that the sex offender registration act has a
remedial purpose, “to protect communities from sex offenders,” and should therefore be
interpreted broadly. Id. at 1239. It thus held that to “determine equivalence, courts must
look beyond the elements of the conviction to the defendant’s actual conduct.” Id. In
looking to a defendant’s actual conduct, though, the court rejected reliance on
unsubstantiated allegations. Id. at 1242. It instead concluded that “[i]n 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.” Id. at 1240.
[¶29] Because the Wyoming Act likewise requires registration based on a conviction of
a registerable offense, we conclude the same limitation applies. The facts or
8
circumstances DCI may consider in determining equivalence must derive from the
convicted conduct, not dismissed charges.
[¶30] We are not dissuaded from this reading of the Act by the fact that it is only the
victim’s age that is at issue in this appeal. If the facts and circumstances that may be
considered under the Act include dismissed charges, there is no limit to DCI’s ability to
require registration based on unproven conduct. Consider for example a defendant
charged with second-degree human trafficking of an adult in violation of Wyo. Stat. Ann.
§ 6-2-703, a registerable offense, but who pleads guilty to misdemeanor false
imprisonment in violation of § 6-2-203, a non-registerable offense. Under such a
scenario, the State would not have proved any element of the human trafficking charge,
and the defendant would not have pled guilty to those elements. Nonetheless, under
DCI’s interpretation of its authority to consider the facts and circumstances of the
conviction, it could rely on the allegations of the dismissed charge to require registration.
[¶31] The Tenth Circuit Court of Appeals has cautioned against such an expansive
interpretation of a circumstance-based approach to determining equivalence.
[T]he Supreme Court has instructed that we also consider the
practical difficulties and potential unfairness of applying a
circumstance-specific approach, including the burden on the
trial courts of sifting through records from prior cases, the
impact of unresolved evidentiary issues, and the potential
inequity of imposing consequences based on unproven factual
allegations where the defendant has pleaded guilty to a lesser
offense.
United States v. White, 782 F.3d 1118, 1132 (10th Cir. 2015) (citing Taylor v. United
States, 495 U.S. 575, 601-02, 110 S.Ct. 2143, 2159-60, 109 L.Ed.2d 607 (1990)).
[¶32] Aside from these concerns, an additional flaw in DCI’s reliance on a dismissed
charge to determine the facts and circumstances underlying a conviction is its
presumption that the elements of the dismissed charge could have been proved. We
cannot know that. For example, in this case, we do not know why nearly two years after
Mr. Minter’s indictment, the Georgia prosecutor offered Mr. Minter a plea deal. It is
certainly possible that the prosecutor was concerned with proving the charged conduct.
And, while Mr. Minter was compelled to complete the offender registration form in
Wyoming, he could not have been compelled to testify against himself on the dismissed
charge, and we have no way of knowing whether the victim would have been available to
testify.4
4
It cannot be disputed that Mr. Minter was compelled to register and complete the registration form. The
9
[¶33] In any event, the elements of the dismissed charge, including the victim’s age,
were not proven or pled to because they were not facts on which Mr. Minter’s conviction
of the lesser offense depended. Conversely, that the victim was under the age of thirteen
is an element of second-degree sexual abuse of a minor in violation of § 6-2-315(a)(ii).
See Wyo. Crim. Pattern Jury Inst. No. 23.15B. Because that element was not proved and
we do not know that it could have been proved, Mr. Minter’s conviction for sexual
battery cannot be deemed the foreign equivalent of second-degree sexual abuse of a
minor. See Hall, 294 P.3d at 1240.
[¶34] The Missouri Supreme Court recently confronted a similar situation. In Frisz, the
defendant was indicted on seventeen counts alleging multiple instances of sodomy and
child molestation involving his daughters. 643 S.W.3d at 361. The state reached a plea
agreement with the defendant in which he agreed to plead to four counts of endangering
the welfare of a child in the first degree, with no sexual component. Id. In exchange, the
state agreed to dismiss all other counts. Id. The lower court reluctantly accepted the plea
agreement based on the state’s representations regarding the victims’ mental states and
the state’s assessment of its likelihood of success on the original charges. Id.
[¶35] Missouri uses a non-categorical approach to determine whether a convicted
offense is registerable, which allows a court to look beyond a guilty plea to the
underlying facts to determine whether an offense qualifies. Frisz, 643 S.W.3d at 362. The
sheriff required the defendant to register and defended that decision based on the
allegations in the dismissed charges and the victim impact statement of one of the
daughters. Id. at 362-63. The court rejected both arguments. Id. at 362-64. Concerning
the allegations in the dismissed charges, the court reasoned:
SORNA makes clear the offenses must result in a conviction
for a person to be considered a sex offender. So, while a sex
offense can include a multitude of offenses depending on the
underlying circumstances of those offenses, merely alleging a
person committed a sex offense does not make that person a
sex offender under SORNA. The state alleged Doe committed
sex offenses, but Doe pleaded guilty only to offenses that
Sheriff Frisz agrees were not sexual in nature. Sheriff Frisz
cannot use allegations and charges from offenses for which
Sheriff’s Office ordered him to do so, and he faced a felony charge if he failed to comply. See Wyo. Stat.
Ann. § 7-19-307(c) (“A person who knowingly fails to register as required by W.S. 7-19-302 is guilty of a
felony punishable by a fine of up to one thousand dollars ($1,000.00), imprisonment for not more than
five (5) years, or both.”).
10
the state did not obtain convictions to show the offenses for
which Doe actually was convicted were sexual in nature.
Id. at 363 (footnote omitted).
[¶36] Concerning the statements in the victim impact statement, the Missouri court
observed:
Victim impact statements are unsworn statements and, by
design, allow victims to put before the court facts and
circumstances that are not necessarily elements of the charges
on which sentence is to be pronounced and regarding which
the defendant has not pleaded or been found guilty.
Therefore, H.C.’s victim impact statement does not suffice to
show the offense to which Doe pleaded guilty was sexual in
nature.
Frisz, 643 S.W.3d at 364.
[¶37] Frisz illustrates the considerations that may compel a prosecutor to reduce charges
and the peril of relying on dismissed charges to determine whether an offense is
registerable. Nothing in the Wyoming Act requires a different result or suggests the
legislature intended a different result. An offender is defined as a person convicted of a
registerable offense. The requirement of a conviction makes it clear the legislature
intended to allow consideration of only those facts or circumstances for which an
individual was convicted.
[¶38] The federal Sex Offender Registration and Notification Act (SORNA) does not
compel a different result. Contrary to DCI’s assertion, the Wyoming Act is not required
to comply with SORNA. As the Tenth Circuit has observed, SORNA does not compel a
state to do anything. White, 782 F.3d at 1127-28. It instead conditions a state’s receipt of
certain federal funds on substantial implementation of SORNA’s registration
requirements. Id.; 34 U.S.C. § 20927(a). As a result, while Wyoming may have
substantially implemented the requirements of SORNA, the language of the Wyoming
Act does not mirror SORNA. The United States Attorney General’s guidance on
interpreting specific provisions of SORNA is thus of limited value and does not change
our task of interpreting the plain language of the Wyoming Act. Moreover, DCI points to
no SORNA provision or guidance that suggests it is permissible to look beyond the
conduct for which an individual was convicted to determine whether his or her offense is
registerable.
[¶39] The federal cases on which DCI relies likewise do not compel a different
conclusion. In White, the defendant was indicted on a charge of taking indecent liberties
11
with a child under sixteen years of age and convicted of that offense. 782 F.3d at 1121,
1136. Under those circumstances, the Tenth Circuit held the court could look to the
underlying facts to determine the child’s precise age. Id. at 1136. In United States v. Mi
Kyung Byun, the defendant pled “guilty to a violation of 8 U.S.C. § 1328, ‘importation
into the United States of any alien for the purpose of prostitution[.]’” 539 F.3d 982, 983
(9th Cir. 2008). The court held: “Because Byun’s plea agreement reveals that she in fact
imported a minor for purposes of prostitution, her offense is a ‘specified offense against a
minor’ and she is a sex offender under SORNA.” Id. at 994. In both cases, the courts
looked to the conduct for which the defendants were convicted. Neither stands for the
proposition that an alleged offender may be required to register based on dismissed
charges.
[¶40] The Georgia cases on which DCI relies are equally unavailing. In Rogers v. State,
the State of Georgia charged the defendant with aggravated molestation of a child and
rape, and he pled to two counts of aggravated assault. 678 S.E.2d 125, 126 (Ga. Ct. App.
2009). The appellate court cited its precedent that “[i]n determining whether the conduct
toward the minor was sexual in nature, courts must look to the underlying facts of the
conviction in question.” Id. at 127. It noted the task may include looking to the
indictment or accusations, but the court also looked to the plea transcript and final
disposition orders to ensure that the aggravated assault convictions were predicated on
the facts in the indictment. Id. at 127, n. 2.
[¶41] In Morrell v. State, the defendant was indicted on two counts of child molestation
and pled to two counts of cruelty to children. 677 S.E.2d 771 (Ga. Ct. App. 2009). The
appellate court rejected the defendant’s argument that the crimes to which he pled were
not sexual in nature. It reasoned:
Contrary to Morrell’s argument, the record reflects that he
entered an Alford plea to two instances of cruelty to children
for “causing mental anguish to [the victim]” by committing
the acts alleged in the indictment. Those acts, acknowledged
by Morrell, involved him touching the breast and buttocks of
the 14-year-old victim. Therefore, although Morrell did not
plead guilty to a sexual offense, he did plead guilty to
“conduct, which, by its nature, is a sexual offense against a
minor” which is a “criminal offense against a victim who is a
minor” under OCGA § 42-1-12(a)(9)(B)(xi).
Id. at 772-73 (footnote omitted).
[¶42] In both Rogers and Morrell, the clear focus of the appellate court in determining
whether the defendants were guilty of sexual offenses was the conduct to which the
defendants actually pled guilty. This focus was reaffirmed in a 2020 decision by the
12
Georgia appellate court. Smart, 846 S.E.2d 172. In Smart, the defendant was convicted of
failing to register in Georgia based on an offense committed in Michigan. Id. at 173. The
appellate court reversed because the state’s evidence was insufficient to show that the
conduct with which the defendant was charged in Michigan was the conduct for which he
was convicted. Id. at 174. The court explained:
Whether Smart was “charged” with a sexual offense
involving a minor is not the pertinent question. The issue was
whether Smart was convicted of a sexual offense involving a
minor and whether that conviction required Smart to register
as a sexual offender in Michigan. The State’s evidence on this
crucial issue was insufficient. There was no definitive
connection between Smart’s warrant and sentence sheet, no
affirmative testimony that Smart was convicted of the charge
listed in the warrant, and no affirmative testimony that
Smart’s conviction required sexual offender registration in
Michigan.
Id.[¶43] If Mr. Minter had pled guilty in the same manner as the defendants in Rogers and
Morrell, incorporating the allegations of the indictment into his plea, the result in this
case would be different. But he did not. His plea contained none of the facts or
circumstances of his crime and stated only, “I plead Guilty to Sexual Battery O.C.G.A.
16-6-22.1.” His plea thus tells us no more than that he admitted to “(1) physical contact
with the victim’s intimate body parts; (2) intent to have such contact; and (3) lack of
consent on the part of the victim.” Nembhard, 859 S.E.2d at 121 (quoting Watson, 777
S.E.2d at 678). There was no admission to sexual battery of a child, and Mr. Minter was
not convicted of sexual battery of a child.
[¶44] Our conclusion does not, as DCI contends, hinder its ability to classify out-of-state
offenders. In that regard, DCI argues that the age of a victim may not be discernible from
the elements of a foreign offense, making it impossible for it to determine the equivalent
Wyoming offense or proper level of registration if it cannot look to the facts or
circumstances underlying the conviction. We understand this, and our decision does not
foreclose such an examination.
[¶45] If a person were convicted of sexual contact with a minor in another state, that
would mean he or she either pled guilty to such conduct with a victim under a specified
age, or the government proved it. Assuming DCI otherwise has sufficient information to
align the foreign conviction with a registerable Wyoming offense, subsection 302(o)
13
would in that event allow DCI to register the offender under the level (j) until it receives
“verifiable information or documentation” of the victim’s precise age.5
[¶46] The Act authorizes DCI to rely on the facts and circumstances underlying an
alleged offender’s conviction to determine his or her registerable offense. Based on the
Act’s plain terms, though, those facts or circumstances include only the conduct for
which an alleged offender was convicted. The Act does not authorize DCI to require
registration based on dismissed charges or based on charges it believes could have been
brought.
[¶47] We turn then to DCI’s argument that subsection 302(o) of the Act authorized it to
1) require Mr. Minter to register before it knew him to be an offender; and 2) rely on the
information Mr. Minter provided on his registration form to determine his offender status.
II. Wyo. Stat. Ann. § 7-19-302(o) does not authorize DCI to require an individual to
register as an offender before it has determined he or she was convicted of a
registerable offense.
[¶48] Subsection 302(o) authorizes DCI to register an offender at the level for the most
serious of offenses if it “lacks sufficient information or documentation to identify the
offender’s crime for which convicted or equivalent Wyoming offense[.]” As discussed
above, the Act clearly defines an offender as a person convicted of a registerable offense.
Wyo. Stat. Ann. § 7-19-301(a)(viii). Thus, with its use of the term “offender” throughout,
subsection 302(o) by its plain terms presupposes that the individual DCI is registering is a
person convicted of a registerable offense. The provisional registration it authorizes is
solely for the purpose of determining the proper level of registration, not for determining
whether registration is required in the first place.
5
DCI contends that the victim information Mr. Minter provided on the offender registration form
constituted “verifiable information.” Mr. Minter challenged the authority of DCI to compel him to
register, but he did not argue that the information he provided was not verifiable. Given our disposition of
the case, we need not address what constitutes “verifiable information or documentation.” We note,
however, that although Mr. Minter signed the registration form, it did not purport to be a sworn statement.
Additionally, DCI’s own policy and procedure states:
If the division receives additional verifiable information (certified court
documents from the court) and this demonstrates that the offender was
not convicted of an offense listed in subsection (j) of WY Statu[t]e 7-19-
302 or an offense from any other jurisdiction containing the same or
similar elements or arising out of the same or similar facts or
circumstances, the division shall modify the offender status.
CJIS Policy and Procedure #3.100 at 2 (emphasis added).
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[¶49] This interpretation is supported by a reading of subsection 302(o) as a whole.
After authorizing DCI to register an offender, the subsection provides that “[i]f the
division receives additional verifiable information or documentation that demonstrates
that the offender was not convicted of an offense specified under subsection (j) of this
section . . ., it shall modify the offender’s status.” Importantly, it specifies what DCI is to
do if it finds that subsection (j) is not the correct level; it does not refer to a circumstance
in which DCI finds the offender is not required to register at all. Also, it directs DCI to
modify the offender’s status, suggesting a movement between levels, not a removal from
the registry. When read as a whole, it is clear that subsection 302(o) contemplates the
provisional registration only of someone convicted of a registerable offense.
[¶50] In disputing this interpretation, DCI contends:
Subsection (o) covers situations where the Division “lacks
sufficient information or documentation to identify the
offender’s crime for which convicted.” Wyo. Stat. Ann. § 7-
19-302(o). Under Minter’s interpretation, the Division cannot
contemplate a scenario where it would be able to use
subsection (o). How can the Division know for certain that
the individual is, in fact, an “offender,” as defined in Wyo.
Stat. Ann. § 7-19-301 if they cannot identify the “offender’s
crime for which convicted”? Under Minter’s interpretation,
there would be no point to this language in subsection (o) as
the Division would never be able to use it.
[¶51] We disagree. The legislature defined the term offender, and it used that term in
subsection 302(o), rather than the term person or individual. We must give effect to the
terms the legislature used, and we may not insert or substitute those it did not. BC-K,
2022 WY 80, ¶ 11, 512 P.3d at 638. In cases like this one, where DCI had only a sparse
criminal history, the way it can determine if the individual is actually an offender is to
obtain additional information concerning the conviction.6
[¶52] While we understand the desire for expediency in registering an offender, the risk
in interpreting this provision otherwise is a wrongful registration, and it is beyond dispute
that negative consequences flow from registration as a sex offender. See, e.g., Wyo. Stat.
Ann. § 7-19-303(c)(ii) (requiring notification to neighbors within seven hundred fifty feet
of an offender registered under level 302(h) or (j)). Yet subsection 302(o) contains no
safeguards to protect against the risk of wrongful registration. It places no parameters on
6
Nothing prevents DCI from requesting information from the jurisdiction in which an individual was
convicted. DCI’s policy and procedure indicates that in making its determination it is to look to certified
court documents. CJIS Policy and Procedure #3.100.
15
offenses that can legitimately raise DCI’s suspicion that an individual may be an
offender, and it imposes no timeframe within which DCI must complete its verification.
We conclude the likely reason for that omission is such protections were unnecessary.
The legislature took care to ensure that the only persons required to register under
subsection 302(o), and any other section of the Act, were those whom DCI had
determined were in fact offenders.
[¶53] Indeed, the care with which the Act is drawn is part of the reason we have upheld
its constitutionality against challenges it violates the ex post facto clause of the United
States Constitution.
Further, we are not persuaded that Wyoming’s Act is
excessive because it applies only to persons convicted of sex
offenses, and not to those individuals who plead to a lesser
charge, whose convictions are overturned, or whose cases are
disposed of pursuant to Wyo. Stat. Ann. § 7-13-301. Wyo.
Stat. Ann. § 7-19-301(a)(iii). The legislature’s identification
of individuals convicted of the specified sex offenses
constitutes a reasonable basis for determining potential risks
to the public, and does not demonstrate that the regulatory
scheme is “excessive.” We conclude that, in light of the
substantial interests at stake, WSORA’s requirements
constitute a reasonable method of achieving the goal of public
safety.
Kammerer v. State, 2014 WY 50, ¶ 31, 322 P.3d 827, 839 (Wyo. 2014).
[¶54] Our interpretation of subsection 302(o) does not, as DCI contends, render it
meaningless. An example illustrates how we interpret this provision to operate. First-
degree sexual abuse of a minor in violation of section 6-2-314(a)(ii) or (iii) is a
registerable offense under both levels 302(h) and (j), depending on the age of the victim.
Wyo. Stat. Ann. § 7-19-302(h) and (j). However, the elements of that offense will not
necessarily identify the precise age of the victim.7 Thus, in the event of such a conviction,
7
Wyo. Stat. Ann. § 6-2-314 provides:
(a) An actor commits the crime of sexual abuse of a minor in the
first degree if:
...
(ii) Being eighteen (18) years of age or older, the actor
inflicts sexual intrusion on a victim who is less than
eighteen (18) years of age, and the actor is the victim’s
legal guardian or an individual specified in W.S. 6-4-
402;
16
DCI would know the individual was an offender, but it may not know whether he or she
is a level (h) or (j) offender. Subsection 302(o) would allow it to register the offender at
level (j), the most serious level, until it receives “verifiable information” of the victim’s
age. If the victim’s age indicates the offense was not a level (j) offense, DCI would be
required to modify the offender’s status to level (h).
[¶55] Based on the plain language of Wyo. Stat. Ann. § 7-19-302(o), we conclude the
district court erred in interpreting DCI’s authority under that subsection. It does not
authorize DCI to register someone it merely suspects might be an offender, and it does
not authorize DCI to use registration as a means to determine whether an individual has
been convicted of a registerable offense.
[¶56] We thus conclude DCI could not rely on Mr. Minter’s statement of his victim’s
age to make his Georgia conviction the equivalent of second-degree sexual abuse of a
minor. Regardless of the information Mr. Minter was compelled to provide on the
registration form, he was not convicted of sexual battery of a child, and the registration
requirement under the Act hinges on the crime for which an offender is convicted. If
there is no conviction for a registerable offense, there is not an offender, and nothing in
subsection 302(o) or any other part of the Act authorizes DCI to seek out information
beyond a conviction to cobble together a registerable offense.
[¶57] Because we reverse the district court’s rulings concerning DCI’s authority under
the Act, we need not address Mr. Minter’s claim that the rulings ran afoul of his Sixth
Amendment protections.
CONCLUSION
[¶58] The Act defines an offender as one convicted of a registerable offense. Because
the requirement to register as a sex offender is premised on a conviction, DCI may not
rely on dismissed charges to determine an individual’s registration requirements.
Additionally, DCI may not require someone to register before it knows he or she was
convicted of a registerable offense.
[¶59] Reversed.
(iii) Being eighteen (18) years of age or older, the actor
inflicts sexual intrusion on a victim who is less than
sixteen (16) years of age and the actor occupies a
position of authority in relation to the victim.
If the victim of this offense is under eighteen, the offender must register under level (h). Wyo. Stat. Ann.
§ 7-19-302(h). If the victim is under thirteen, the offender must register under level (j). Wyo. Stat. Ann.
§ 7-19-302(j).
17