FROM THE DISTRICT COURT OF TAOS COUNTY Jeff Foster McElroy,
H. Balderas, Attorney General Santa Fe, NM Charles J.
Gutierrez, Assistant Attorney General Albuquerque, NM for
Bennett J. Baur, Chief Public Defender Mary Barket, Assistant
Appellate Defender Santa Fe, NM for Appellant
MICHAEL E. VIGIL, JUDGE.
The opinion filed on October 15, 2018, is hereby withdrawn,
and this opinion is filed in its stead. Melvin Winn
(Defendant) appeals from the judgment and sentence entered
upon his conditional guilty plea to one count of failure to
register as a sex offender in violation of the Sex Offender
Registration and Notification Act (SORNA), NMSA 1978,
§§ 29-11 A-1 to -10 (1995, as amended through
2015). Defendant argues that (1) his misdemeanor Colorado
conviction for third degree sexual assault is not
"equivalent" to any SORNA offense; and (2) even
assuming his Colorado conviction corresponds to a SORNA
offense if he had been an adult, because he was fifteen years
old at the time he committed the sexual assault, his conduct
constituted a delinquent act or youthful offender offense
under New Mexico law that is not equivalent to a
"conviction" for a SORNA offense. We agree with
Defendant's first argument and reverse.
On June 8, 1999, when Defendant was fifteen years old, he was
accused of committing sexual assault in Colorado. On April 3,
2001, a jury found Defendant guilty of one count of
misdemeanor third degree sexual assault, a class 1
misdemeanor, in violation of Colo. Rev. Stat. Section
18-3-404 (1996, amended 2013), and first degree assault
(non-sexual offense), a class 3 felony, in violation of Colo.
Rev. Stat. Section 18-3-202(1)(a) (1998, amended 2016).
Defendant was sentenced to two years confinement for the
misdemeanor sexual assault conviction with two years credit
for time served.
After Defendant moved to New Mexico, an indictment filed in
February 2014 charged Defendant with one count of failure to
register as a sex offender in violation of SORNA. Defendant
filed a motion to dismiss the indictment, under State v.
Foulenfont, 1995-NMCA-028, ¶ 3, 119 N.M. 788, 895
P.2d 1329, arguing that, as a matter of law, he did not meet
the definition of a "sex offender" who has been
convicted of a "sex offense" under SORNA. Citing
State v. Hall, 2013-NMSC-001, 294 P.3d 1235,
Defendant argued that the sexual offense for which he was
convicted in Colorado "does not have the same elements
as any of the sex offenses listed" in SORNA, requiring
registration as a sex offender in New Mexico and that
"[t]he only documentation that the State has provided
that [Defendant] meets the definition of a 'sex
offender' who has been convicted of a 'sex
offense' .... is a [j]udgment of [c]onviction from
Colorado dated July 12, 2001."
The State contended that "Defendant was convicted at [a]
jury trial of engaging in sexual contact, intrusion, or
penetration with a child for the purpose of his own sexual
gratification." The conduct forming the basis of this
conviction, the State argued, is equivalent to the
registrable New Mexico offense of criminal sexual contact of
a minor (CSCM) or criminal sexual penetration (CSP). To
provide a factual basis for this assertion, the State
tendered an unfiled, unsigned presentence report purporting
to describe, based on information provided by the Littleton
Police Department, the victim's and Defendant's
accounts of the conduct giving rise to his convictions in
At the hearing on Defendant's motion to dismiss,
Defendant continued to assert that the elements of
misdemeanor third degree sexual assault, for which he was
convicted in Colorado, did not match any registrable SORNA
offense. He further asserted that the State could not rely on
the presentence report to establish the requisite factual
basis of force, coercion, or penetration in order for
Defendant's conduct to come within the scope of one of
the potentially applicable SORNA offenses. The presentence
report, Defendant asserted, was created based on the police
report in the case and not, as is required under
Hall, based on facts that the jury necessarily found
at trial. The State replied that the presentence report
clearly established that Defendant's conduct satisfies
the definition of a SORNA offense- to wit, CSCM.
In a written order, the district court denied Defendant's
motion to dismiss. The order states that
"Defendant's conviction if obtained in New Mexico
would consist of criminal sexual contact of a minor and would
be a registerable offense. For all the above reasons and for
the reasons cited in the State's brief in opposition to
the [m]otion, . . . Defendant's [m]otion is DENIED."
Thereafter, Defendant entered a conditional guilty plea to
the charge of failure to register as a sex offender
conditioned upon Defendant's reservation of the right to
appeal the district court's denial of his motion to
dismiss the indictment. This appeal followed.
Contending that his conviction for third degree sexual
assault is not equivalent to a registrable SORNA offense,
Defendant argues (1) "[t]he elements of the Colorado
misdemeanor offense of [s]exual [a]ssault in the [t]hird
[d]egree do not correspond to a registrable offense in New
Mexico"; and (2) "[t]he State failed to present
evidence establishing that [his] actual conduct as found by
the Colorado jury met the elements of any registrable offense
in New Mexico."
Standard of Review
"In Foulenfont, we stated that it was proper
for a district court to decide purely legal matters and
dismiss a case when appropriate before trial[, ]" where
dispositive facts are undisputed. State v. Platero,2017-NMCA-083, ¶ 7, 406 P.3d 557 (internal quotation
marks and citation omitted); see Rule 5-601 NMRA.
Whether a district court properly grants or denies a
defendant's motion to dismiss an indictment on purely
legal grounds presents a question of law that we review de
novo. See State v. Muraida,2014-NMCA-060, ¶
12, 326 P.3d 1113 ("[W]e review de novo whether the
district court erred in granting [a d]efendant's
Foulenfont motion."); see State v.LaPietra,2010-NMCA-009, ¶ 5, 147 N.M. 569, 226
P.3d 668 ("The contours ...