{ "id": 4335160, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. BRETT ORR, Defendant-Appellant", "name_abbreviation": "State v. Orr", "decision_date": "2013-05-03", "docket_number": "Docket No. 31,626", "first_page": "223", "last_page": "228", "citations": [ { "type": "official", "cite": "2013-NMCA-069" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "1999-NMCA-085", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 257699 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm/127/0540-01" ] }, { "cite": "2003-NMSC-022", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 77128 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 14" } ], "opinion_index": 0, "case_paths": [ "/nm/134/0172-01" ] }, { "cite": "265 P.3d 718", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "150 N.M. 667", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "2011-NMCERT-005", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "2008-NMCA-070", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4003202 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 22-43" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0156-01" ] }, { "cite": "2011-NMCA-047", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4250041 ], "weight": 9, "pin_cites": [ { "page": "\u00b6 2" }, { "page": "\u00b6 8" } ], "opinion_index": 0, "case_paths": [ "/nm/149/0546-01" ] }, { "cite": "2005-NMCA-120", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 2549954 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/138/0466-01" ] }, { "cite": "294 P.3d 1235", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2013-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4191197 ], "weight": 11, "pin_cites": [ { "page": "\u00b6 6" }, { "page": "\u00b6 18" }, { "page": "\u00b6 24" }, { "page": "\u00b6 22" }, { "page": "\u00b6\u00b6 9-19" }, { "page": "\u00b6 29" } ], "opinion_index": 0, "case_paths": [ "/nm-app/3/0204-01" ] } ], "analysis": { "cardinality": 584, "char_count": 12450, "ocr_confidence": 0.857, "pagerank": { "raw": 5.298132930532853e-08, "percentile": 0.33355805685968565 }, "sha256": "790df4c61bdef0d0eef60e650bf03f4b35c54d517affcb446cbe9f0006fc96a9", "simhash": "1:19ec2527b6936862", "word_count": 2010 }, "last_updated": "2023-07-14T21:50:37.461651+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "JAMES J. WECHSLER, Judge", "WE CONCUR:", "JONATHAN B. SUTIN, Judge", "TIMOTHY L. GARCIA, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. BRETT ORR, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWECHSLER, Judge.\nDefendant Brett Orr appeals his conviction for failure to register as a sex offender in violation ofNMSA 1978, Section 29-11A-4 (2005). The sole issue on appeal is whether Defendant\u2019s conviction for \u201ctalcing indecent liberties with children\u201d in North Carolina is equivalent to any of the twelve enumerated offenses under the New Mexico Sex Offender Registration and Notification Act (SORNA), NMSA 1978, \u00a7\u00a7 29-11A-1 to -10 (1995, as amended through 2007). Relying upon State v. Hall (Hall II), 2013-NMSC-001, 294 P.3d 1235, we hold that an out-of-state offense is \u201cequivalent\u201d to a sex offense in New Mexico if the defendant\u2019s actual conduct supporting his or her out-of-state conviction would have constituted any of the twelve sex offenses under SORNA. We further conclude that the record is insufficient to determine the factual basis supporting Defendant\u2019s conviction in North Carolina. Accordingly, we remand to the district court for further proceedings.\nBACKGROUND\nDefendant was convicted of taking indecent liberties with children in North Carolina, which required him to register as a sex offender for life in North Carolina. Subsequently, Defendant moved to New Mexico. He registered as a sex offender in San Juan County, New Mexico on May 12, 2011. Shortly thereafter, he relocated to Cibola County, New Mexico and failed to notify and register with that county\u2019s sheriffs offices. As a result, Defendant was charged with failure to register as a sex offender under SORNA.\nDefendant entered into a plea agreement on August 22, 2011 and orally reserved his right to withdraw the plea should legal research reveal that his conviction in North Carolina is not equivalent to a sex offense under SORNA such that it did not require him to register as a sex offender in New Mexico. On August 25,2011, Defendant filed amotion to withdraw his plea and dismiss the charge. The State filed a response and argued that based on Defendant\u2019s alleged conduct in North Carolina, he could have been charged with a number of sex offenses in New M exico. The district court did not make any formal findings as to the factual basis supporting Defendant\u2019s underlying conviction.\nAfter comparing the elements of the North Carolina offense of taking indecent liberties with children with the twelve enumerated offenses under SORNA, the district court concluded that there is no one-to-one correlation between North Carolina\u2019s sex offense and a single New Mexico sex offense. Nevertheless, the district court concluded that taking indecent liberties with children encompasses five sex offenses in New Mexico: (1) enticement of a child, contrary to NMSA 1978, Section 30-9-1 (1963); (2) solicitation to commit criminal sexual contact of a minor (CSCM), contrary to NMSA 1978, Section 30-9-13 (2003) and Section 30-28-3 (1979); (3) attempted CSCM, contrary to Section 30-9-13 andNMSA1978, Section 30-28-1 (1963); (4) attempted aggravated indecent exposure, contrary to NMSA 1978, Section 30-9-14.3 (1996) and Section 30-28-1; and (5) attempted sexual exploitation of children, contrary to NMSA 1978, Section 30-6A-3 (2007) and Section 30-28-1. Consequently, the district court denied Defendant\u2019s motion to withdraw his plea and dismiss the charge.\nOBLIGATION TO REGISTER UNDER SORNA\nWe must determine whether the North Carolina crime of taking indecent liberties with children is equivalent to any sex offense in New Mexico, thereby requiring Defendant to register as a sex offender in New Mexico under SORNA. \u201cStatutory interpretation is an issue of law, which we review de novo.\u201d State v. Duhon, 2005-NMCA-120, \u00b6 10, 138 N.M. 466, 122 P.3d 50.\nSORNA requires sex offenders residing in New Mexico to register with their local county sheriff. See \u00a7 29-11A-4(A). A \u201csex offender\u201d is an individual convicted of a \u201csex offense.\u201d See \u00a7 29-11 A-3(D). \u201c \u2018Sex offense\u2019 is defined as any of twelve enumerated New Mexico offenses \u2018or their equivalents in any other jurisdiction.\u2019 \u201d Hall II, 2013-NMSC-001, \u00b6 6 (quoting Section 29-11A-3(E)).\nIn State v. Hall (Hall I), 2011-NMCA-047, 149 N.M. 546, 252 P.3d 770, rev\u2019d by 2013-NMSC-001, the defendant was convicted of annoying or molesting a child in California, which required him to register as a sex offender in California. Hall I, 2011-NMCA-047, \u00b6 2. He subsequently moved to New Mexico, did not register as a sex offender, and was charged with failure to register as a sex offender. Id. The defendant moved to dismiss the charge and argued that the \u201cannoying or molesting\u201d statute in California was not equivalent to any of the sex offenses in New Mexico. Id. The district court denied the defendant\u2019s motion. Id.\nOn appeal, the state in Hall I argued that annoying or molesting a child is equivalent to CSCM in New Mexico. Id. \u00b6 5. Noting that the Legislature did not define \u201cequivalent,\u201d we compared the elements of the offenses to determine whether they were equivalent. Id. \u00b6\u00b6 5-8; see also State v. Lewis, 2008-NMCA-070, \u00b6\u00b6 22-43, 144 N.M. 156, 184 P.3d 1050 (holding that the defendant\u2019s Colorado conviction for driving while ability impaired was \u201cequivalent\u201d to a New Mexico conviction for driving while under the influence of intoxicating liquor or drugs because the elements of both statutes were substantially identical in nature and definition when compared to each other). In Hall I, we held thatthe defendant\u2019s California conviction was not equivalent to New Mexico\u2019s CSCM because our CSCM statute requires touching or application of force to the victim, whereas California\u2019s annoying or molesting statute does not. Hall I, 2011-NMCA-047, \u00b6 8. The state petitioned our Supreme Court for a writ of certiorari, which was granted. State v. Hall, 2011-NMCERT-005, 150 N.M. 667, 265 P.3d 718.\n{9} During the district court proceedings and the initial appellate briefing in the present case, Hall I was the applicable law in New Mexico. Therefore, the parties and the district court relied upon Hall I, respectively, in making their arguments and reaching its conclusion. The day after the State filed its answer brief, our New Mexico Supreme Court filed Hall II, 2013-NMSC-001, which reversed Hall I, 2011-NMCA-047. The Supreme Court held that \u201ccourts must look beyond the elements of the [out-of-state] conviction to the defendant\u2019s actual conduct\u201d to determine equivalence. Hall II, 2013-NMSC-001, \u00b6 18. In doing so, the Court clarified that a comparison of the elements is still relevant.\nWhen 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\u2019s underlying conduct to determine whether the defendant\u2019s conduct would have required registration in New Mexico as a sex offender.\nId.\nIn this case, Defendant was convicted of taking indecent liberties with children contrary to N.C. Gen. Stat., Section 14-202.1 (1994), which states as follows:\n(a) A person is guilty of taking indecent liberties with children if, being 16 years of age or more and at least five years older than the child in question, he either:\n(1) Willfully takes or attempts to take any immoral, improper, or indecent liberties with any child of either sex under the age of 16 years for the purpose of arousing or gratifying sexual desire; or\n(2) Willfully commits or attempts to commit any lewd or lascivious act upon or with the body or any part or member of the body of any child of either sex under the age of 16 years.\n(b) Taking indecent liberties with children is punishable as a Class F felony.\nWe agree with the district court that the elements of taking indecent liberties with children do not correspond exactly with the elements of any of the sex offenses under SORNA; nevertheless, this broad offense encompasses a number of sex offenses in New Mexico. This conclusion, however, does not complete our analysis. In accordance with Hall II, we must consider Defendant\u2019s underlying conduct to determine whether that conduct would have required him to register in New Mexico as a sex offender. Unfortunately, the record before us is insufficient to make this determination.\nThe State and Defendant acknowledge that the district court did not make any formal findings as to the underlying conviction. The State asks this Court to remand this case to the district court for an evidentiary hearing. Defendant argues that because the record does not contain sufficient facts as to the underlying conviction, the district court \u201cwas limited to the statutory elements comparison . . . under which there was no equivalency and Defendant was not required to register in New Mexico.\u201d\nOur Supreme Court in Hall II recognized that \u201cin 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.\u201d 2013-NMSC-001, \u00b6 24. In those cases, \u201cthe court will be limited to comparing the elements of the foreign sex offense to those of the enumerated offenses under SORNA.\u201d Id. This case is not such a case.\nAlthough we do not have a sufficient record on appeal, the State has indicated that during the pendency of this appeal, it obtained several documents from the district attorney\u2019s office and court in North Carolina, including an investigation report, grand jury indictment, transcript of plea, prior convictions for sentencing, and judgment and commitment, to understand the underlying facts and procedural posture of Defendant\u2019s conviction in North Carolina. See Hall II, 2013-NMSC-001, \u00b6 22 (\u201cWhen 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.\u201d). Accordingly, we remand this case to the district court for further proceedings, with leave for Defendant to withdraw his guilty plea.\nOTHER ISSUES RAISED BY BRIEFS\nThe parties raise other issues in their briefs on appeal that we address summarily. Prior to Hall II, Defendant argued that, under the rule of lenity, this Court must construe Sections 29-11 A-3 and 29-11 A-4 in his favor if we determine that they are ambiguous. However, Defendant does not describe any ambiguity in Sections 29-11 A-3 and 29-11 A-4 as they relate to the issues in this case. See State v. Davis, 2003-NMSC-022, \u00b6 14, 134 N.M. 172, 74 P.3d 1064 (\u201cThe rule of lenity counsels that criminal statutes should be interpreted in a defendant\u2019s favor when insurmountable ambiguity persists regarding the intended scope of a criminal statute.\u201d). Absent an insurmountable ambiguity, the rule of lenity does not apply. See Hall II, 2013-NMSC-001, \u00b6\u00b6 9-19 (discussing SORNA\u2019s history and purpose, and rejecting the defendant\u2019s argument that the rule of lenity should apply).\nAlso prior to HallII, the State argued that we must recognize North Carolina\u2019s sex offense as a sex offense in New Mexico under the principles of comity and full faith and credit, because a conviction under SORNA is \u201ca conviction in any court of competent jurisdiction.\u201d Section29-11A-3(A)(emphasis added). Our Supreme Court rejected a similar argument in Hall II. See Hall II, 2013-NMSC-001, \u00b6 29.\nIn his reply brief, Defendant argues that the actual conduct approach announced by the Supreme Court in Hall II renders the failure to register statute void for vagueness. Because Defendant raises this issue for the first time in this case in his reply brief, the issue is not properly before us for review. See State v. Castillo-Sanchez, 1999-NMCA-085, \u00b6 20, 127 N.M. 540, 984 P.2d 787 (\u201cWe will not consider arguments raised for the first time in a reply brief.\u201d). Defendant may assert this argument on remand in the district court.\nCONCLUSION\nFor the foregoing reasons, we remand to the district court for further proceedings consistent with Hall II and this opinion, with leave for Defendant to withdraw his guilty plea.\nIT IS SO ORDERED.\nJAMES J. WECHSLER, Judge\nWE CONCUR:\nJONATHAN B. SUTIN, Judge\nTIMOTHY L. GARCIA, Judge", "type": "majority", "author": "WECHSLER, Judge." } ], "attorneys": [ "Gary K. King, Attorney General Pranava Upadrashta, Assistant Attorney General Santa Fe, NM for Appellee", "B ennett J. Baur, Acting Chief Public Defender Carlos Ruiz de la Torre, Assistant Appellate Defender Santa Fe, NM for Appellant" ], "corrections": "", "head_matter": "IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2013-NMCA-069\nFiling Date: May 3, 2013\nDocket No. 31,626\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. BRETT ORR, Defendant-Appellant.\nGary K. King, Attorney General Pranava Upadrashta, Assistant Attorney General Santa Fe, NM for Appellee\nB ennett J. Baur, Acting Chief Public Defender Carlos Ruiz de la Torre, Assistant Appellate Defender Santa Fe, NM for Appellant" }, "file_name": "0223-01", "first_page_order": 239, "last_page_order": 244 }