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State v. Winn

Court of Appeals of New Mexico

October 17, 2018

STATE OF NEW MEXICO, Plaintiff-Appellee,
v.
MELVIN WINN, Defendant-Appellant.

          APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY Jeff Foster McElroy, District Judge.

          Hector H. Balderas, Attorney General Santa Fe, NM Charles J. Gutierrez, Assistant Attorney General Albuquerque, NM for Appellee

          Bennett J. Baur, Chief Public Defender Mary Barket, Assistant Appellate Defender Santa Fe, NM for Appellant

          OPINION

          MICHAEL E. VIGIL, JUDGE.

         {¶1} The opinion filed on October 15, 2018, is hereby withdrawn, and this opinion is filed in its stead.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.

         BACKGROUND

         {¶2} 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.

         {¶3} 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."

         {¶4} 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 Colorado.

         {¶5} 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.

         {¶6} 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."

         {¶7} 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.

         DISCUSSION

         {¶8} 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."

         I. Standard of Review

         {¶9} "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 ...


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