October 17, 2018- State of New Mexico v. Melvin Winn, No. A-1-CA-34929

1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	Opinion Number: ____ _
3 Filing Date: October 17, 2018
4 NO. A-1-CA-34929
5 STATE OF NEW MEXICO,
6 	Plaintiff-Appellee,
7 V.
8 MELVIN WINN,
9 	Defendant-Appellant.
10 	APPEAL FROM THE DISTRICT COURT OF TAOS COUNTY
11 	Jeff Foster McElroy, District Judge
12 Hector H. Balderas, Attorney General
13 	Santa Fe, NM
14 	Charles J. Gutierrez, Assistant Attorney General
15 	Albuquerque, NM
16 	for Appellee
17 Bennett J. Baur, Chief Public Defender
18 	Mary Barket, Assistant Appellate Defender
19 	Santa Fe, NM
20 	for Appellant
Court of Appeals of New Mexico
Filed 10/17/2018 2:27 PM
Mark Reynolds

1 	OPINION
2 	VIGIL, Judge.
3 {I} 	The opinion filed on October 15 , 2018 , is hereby withdrawn, and this opinion
4 	is filed in its stead. Melvin Winn (Defendant) appeals from the judgment and
5 sentence entered upon his conditional guilty plea to one count of failure to register
6 as a sex offender in violation of the Se x Offender Registration and Notification Act
7 (SORNA), NMSA 1978, §§ 29-1 lA-1 to -10 (1995 , as amended through 2015).
8 Defendant argues that ( 1) his misdemeanor Colorado conviction for third degree
9 sexual assault is not "equivalent" to any SORNA offense; and (2) even assuming his
10 	Colorado conviction corresponds to a SORNA offense if he had been an adult,
11 	because he w as fifteen years old at the time he committed the sexual assault, his
12 	conduct constituted a delinquent act or youthful offender offense under New Mexico
13 	law that is not equivalent to a "conviction" for a SORNA offense. We agree with
14 Defendant' s first argument and reverse.
15 	BACKGROUND
16 	{2} 	On June 8, 1999, when Defendant was fifteen years old, he was accused of
17 	committing sexual assault in Colorado. On April 3, 2001 , a jury found Defendant
18 	guilty 	of one 	count 	of misdemeanor 	third 	degree 	sexual 	assault, 	a 	class 	1
19 	misdemeanor, in violation of Colo. Rev. Stat. Section 18-3-404 (1996, amended
20 	2013), and first degree assault (non-sexual offense), a class 3 felony, in violation of

1 Colo. Rev. Stat. Section 18-3-202(l)(a) (1998, amended 2016). Defendant was
2 sentenced to two years confinement for the misdemeanor sexual assault conviction
3 with two years credit for time served.
4 {3} 	After Defendant moved to New Mexico, an indictment filed in February 2014
5 charged Defendant with one count of failure to register as a sex offender in violation
6 of SORNA. Defendant filed a motion to dismiss the indictment, under State v.
7 Foulenfont, 1995-NMCA-028, ,r 3, 119 N.M. 788, 895 P.2d 1329, arguing that, as a
8 matter of law, he did not meet the definition of a "sex offender" who has been
9 convicted of a "sex offense" under SORNA. Citing State v. Hall, 2013-NMSC-001,
10 	294 P .3 d 1235, Defendant argued that the sexual offense for which he was convicted
11 	in Colorado "does not have the same elements as any of the sex offenses listed" in
12 	SORNA, requiring registration as a sex offender in New Mexico and that "[t]he only
13 	documentation that the State has provided that [Defendant] meets the definition of a
14 	'sex offender' who has been convicted of a 'sex offense' .... is a [j]udgment of
15 	[c]onviction from Colorado dated July 12, 2001."
16 	{4} 	The 	State contended that "Defendant was 	convicted at 	[a] 	jury trial 	of
17 	engaging in sexual contact, intrusion, or penetration with a child for the purpose of
18 	his own sexual gratification." The conduct forming the basis of this conviction, the
19 	State argued, is equivalent to the registrable New Mexico offense of criminal sexual
20 	contact of a minor (CSCM) or criminal sexual penetration (CSP). To provide a
2

1 factual basis for this assertion, the State tendered an unfiled, unsigned presentence
2 report purporting to describe, based on information provided by the Littleton Police
3 Department, the victim ' s and Defendant's accounts of the conduct giving rise to his
4 convictions in Colorado.
5 {S} 	At the hearing on Defendant's motion to dismiss, Defendant continued to
6 assert that the elements of misdemeanor third degree sexual assault, for which he
7 was convicted in Colorado, did not match any registrable SORNA offense. He
8 further asserted that the State could not rely on the presentence report to establish
9 the requisite factual basis of force, coercion, or penetration in order for Defendant's
10 	conduct to come within the scope of one of the potentially applicable SORNA
11 	offenses. The presentence report, Defendant asserted, was created based on the
12 	police report in the case and not, as is required under Hall, based on facts that the
13 jury necessarily found at trial. The State replied that the presentence report clearly
14 	established that Defendant's conduct satisfies the definition of a SORNA offense-
15 	to wit, CSCM.
16 	{6} 	In a written order, the district court denied Defendant's motion to dismiss. The
17 	order states that "Defendant's conviction if obtained in New Mexico would consist
18 	of criminal sexual contact of a minor and would be a registerable offense. For all the
19 	above reasons and for the reasons cited in the State's brief in opposition to the
20 	(m]otion, ... Defendant's (m]otion is DENIED."
3

1 {7} 	Thereafter, Defendant entered a conditional guilty plea to the charge of failure
2 to register as a sex offender conditioned upon Defendant 's reservation of the right
3 to appeal the district court's denial of his motion to dismiss the indictment. This
4 appeal followed.
5 DISCUSSION
6 	{8} 	Contending that his conviction for third degree sexual assault is not equivalent
7 to a registrable SORNA offense, Defendant argues (1) "[t]he elements 	of the
8 Colorado misdemeanor offense of [s]exual [a]ssault in the [t]hird [d]egree do not
9 correspond to a registrable offense in New Mexico"; and (2) " [t]he State failed to
10 	present evidence establishing that [his] actual conduct as found by the Colorado jury
11 	met the elements of any registrable offense in New Mexico."
12 	I.
13 	{9}
Standard of Review
"In Foulenfont, we stated that it was proper for a district court to decide purely
14 	legal matters and dismiss a case when appropriate before trial[,]" where dispositive
15 	facts are undisputed. State v. Platero, 2017-NMCA-083, ,r 7,406 P.3d 557 (internal
16 	quotation marks and citation omitted); see Rule 5-601 NMRA. Whether a district
17 	court properly grants or denies a defendant's motion to dismiss an indictment on
18 	purely legal grounds presents a question of law that we review de novo. See State v.
19 Muraida, 2014-NMCA-060, ,r 12 , 326 P.3d 1113 ("[W]e review de novo whether
20 the district court erred in granting [a d]efendant 's Foulenfont motion."); see State v.
4

l 	LaPietra, 2010-NMCA-009, ,r 5, 147 N.M. 569,226 P.3d 668 ("The contours of the
2 district court 's power to conduct a pretrial hearing on a motion to dismiss charges
3 	... is a legal question reviewed under a de nova standard.").
4 {IO} 	Additionally, whether Defendant's Colorado conviction for misdemeanor
5 third degree sexual assault is "equivalent" to a registrable SORNA offense presents
6 a question of statutory interpretation that is subject to de nova review. Hall, 2013-
7 NMSC-001, ,r 9 ("What constitutes an equivalent offense [under SORNA] involves
8 a question of statutory interpretation. Interpretation of a statute is an issue of law that
9 we review de nova.").
10 	II. 	Analysis
11 	A. 	SORNA and the Hall Standard for Determining Equivalency
12 	{11} 	Under SORNA, as it provided at the time pertinent to our analysis, " [a] sex
13 	offender residing in this state shall register with the county sheriff for the county in
14 	which the sex offender resides." Section 29-11 A-4(A). A "sex offender" includes an
15 	individual that "changes residence to New Mexico, when that person has been
16 	convicted of a sex offense" in another jurisdiction. Section 29-l 1A-3(H)(2). A "sex
17 offense" 	is 	defined 	as 	any 	of the 	twelve 	enumerated 	sex 	offenses 	"or their
18 	equivalents in any other jurisdiction[.]" Section 29-llA-3(1). Our Supreme Court
19 	held in Hall that
20
21
an offense is 'e quivalent' to a New Mexico offense, for purposes of
SORN A, if the defendant's actual conduct that gave rise to the out-of-
5

1
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state conviction would have constituted one of the twelve enumerated
offenses requiring registration pursuant to SORNA.
3 2013-NMSC-001, ,r 1 (emphasis added).
4 {12} 	In Hall, the defendant moved to New Mexico from California, where he had
5 a prior conviction, which resulted from a plea agreement, for violating the California
6 misdemeanor statute prohibiting "annoying or molesting a child under the age of
7 eighteen." Id. ,r,r 1-2 (internal quotation marks and citation omitted). Upon moving
8 to New Mexico, the defendant did not register as a sex offender, and he was charged
9 with failure to register as a sex offender in violation of SORN A. Id. 	,I 3. The
10 	defendant filed a motion to dismiss the charge, "arguing that there was no statute in
11 	New Mexico equivalent to California's 'a nnoying or molesting' a minor statute, and
12 	therefore his failure to register did not violate SORNA." Id. ,I 4. The record contained
13 	no stipulations by the defendant concerning his conduct or documents reflecting the
14 proceedings in California. Id. ,I 28. The district court denied the defendant's motion,
15 	and the defendant entered a conditional guilty plea, reserving the right to appeal the
16 	denial of his motion to dismiss. Id. ,I 4. Based on the record before it, the Court
17 	determined that the State presented insufficient facts to establish that the defendant's
18 	actual conduct underlying his California conviction, had it occurred in New Mexico,
19 	was equivalent to a SORNA offense, because the State's allegations on the issue
20 	completely lacked substantiation. Id. ,I,I 25-28. The case was remanded to the district
6

1 court for further proceedings with leave for the defendant to withdraw his guilty
2 plea. Id. ,-i 30.
3 	{13} 	In so concluding, the Court described the analytic framework that New
4 Mexico courts should apply in determining whether an out-of-state conviction is
5 equivalent to a SORNA offense. See id. ,-i,-i 18-24. "When the elements of the out-of-
6 state sex offense are precisely the same elements of a New Mexico sex offense, the
7 inquiry is at an end[,]" and offenses are considered equivalent. Id. ,-i 18. But "w hen
8 the elements are dissimilar, courts should consider the defendant's underlying
9 conduct 	to 	determine 	whether 	the 	defendant 's 	conduct 	would 	have 	required
10 	registration in New Mexico as a sex offender." Id. The Court interpreted "SORNA
11 	to mean that the defendant 's offense in the foreign state, rather than the statute under
12 	which the defendant was convicted, must be the equivalent of an enumerated
13 	registrable offense in New Mexico." Id. This means that in order "[t]o determine
14 	equivalence, 	courts 	must 	look 	beyond the 	elements 	of the 	conviction to 	the
15 	defendant 's actual conduct." Id.
16 	{14} 	The Court also discussed how "a New Mexico court [should] determine the
17 	actual conduct that supported the defendant 's conviction of a sex offense in another
18 jurisdiction when deciding equivalency under SORNA." Id. ,-i 22. "In essence," the
19 	Court stated, "the question is whether the out-of-state fact-finder necessarily must
20 	have found facts that would have proven the elements of [a] New Mexico registrable
7

1 offense. 	If so, 	the 	alleged 	sex 	offender 	has 	committed 	the 	equivalent 	of an
2 	enumerated New Mexico sex offense." Id. ~ 22. To determine the factual basis of a
3 conviction resulting from a plea agreement or nolo contendere, courts may consider
4 "the charging document, plea agreement, or transcript of the plea hearing" and that
5 	in a bench trial, the courts should consider the "bench-trial judge's formal rulings of
6 	law and findings of fact[.]" Id. 	~~ 22-23 	(internal quotation marks and citation
7 omitted). The Court also observed that it
8
9
10
11
12
13
14
realize[ d] 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.
15 	Id.~ 24.
16 	{15} 	Applying the standard in Hall, we conclude that the district court erred in
17 	concluding as 	a matter of law that Defendant 's 	actual conduct underlying his
18 	Colorado third degree misdemeanor sexual assault conviction, if it had occurred in
19 New Mexico, constituted a SORNA offense.
20 	B. 	Elements of the Offenses
21 	{16} 	Defendant argues that "[ a ]n examination of the statutes at issue verifies that
22 the elements of the [Colorado] misdemeanor offense of [s]exual [a]ssault in the
23 	[t]hird [d]egree do not correspond to any registrable sex offense in New Mexico."
8

1 The State concedes that the elements of the applicable offenses are not identical, and
2 we agree.
3 	{17}
4 part:
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The Colorado unlawful sexual contact statute at issue provides in pertinent
(1) Any actor who knowingly subjects a victim to any sexual contact
commits sexual assault in the third degree if:
(a) The actor knows that the victim does not consent; or
(b) The actor knows that the victim is incapable of appraising the nature
of the victim's conduct; or
( c) The victim is physically helpless and the actor knows that the victim
is physically helpless and the victim has not consented; or
( d) The actor substantially impaired the victim' s power to appraise or
control 	the 	victim' s 	conduct 	by 	employing, 	without 	the 	victim' s
consent, any drug, intoxicant, or other means for the purpose of causing
submission[.]
(1.5) Any person who knowingly, with or without sexual contact,
induces or coerces a child ... to expose intimate parts or to engage in
any sexual contact, intrusion, or penetration with another person, for
the purpose of the actor's own sexual gratification, commits sexual
assault in the third degree. For the purposes of this subsection (1.5), the
term "child" means any person under the age of eighteen years.
(2) Sexual assault in the third degree is a class 1 misdemeanor, but it is
a class 4 felony if the actor compels the victim to submit by use of such
force, intimidation, or threat ... or if the actor engages in the conduct
described in ... subsection (1.5) of this section.
28 	Colo. Rev. Stat. § 18-3-404(1 )-(2). Based on the State's allegations, the potentially
29 	applicable SORNA offenses to this case are CSC, CSCM , and CSP. See NMSA
9

1 1978, § 30-9-12(A), (C) (1993) (defining "criminal sexual contact" as "the unlawful
2 and intentional touching of or application of force, without consent, to the unclothed
3 intimate parts of another w ho has reached his eighteenth birthday, or intentionally
4 causing another who has reached his eighteenth birthday to touch one' s intimate
5 parts" perpetrated "by the use of force or coercion" or if "the perpetrator is armed
6 with a deadly weapon"); NMSA 	1978, 	§ 30-9-13(A), (B)(2) (2003) (defining
7 "criminal sexual contact of a minor" as "the unlawful and intentional touching of or
8 applying force to the intimate parts of a minor or the unlawful and intentional
9 causing of a minor to touch one' s intimate parts" of a child age thirteen to eighteen
10 	when "the perpetrator uses force or coercion" if "the perpetrator is in a position of
11 	authority over the child" or "armed with a deadly weapon"); NMSA 1978, § 30-9-
12 	11 (A) 	(2009) 	(defining 	"criminal 	sexual 	penetration" 	as 	"the 	unlawful 	and
13 	intentional causing of a person to engage in sexual intercourse, cunnilingus, fellatio
14 	or anal intercourse or the causing of penetration, to any extent and with any object,
15 	or the genital or anal openings of another, whether or not there is any emission" ).
16 	{18 } 	As we have already stated, the judgment and sentence tendered to the district
17 court, the authenticity of which is not disputed, states that Defendant was convicted
18 	of third degree sexual assault in violation of Colo. Rev. Sta t. Section 18-3-404. The
19 judgment and sentence further reflects that Defendant' s sexual assault conviction
20 was sentenced as a class 1 misdemeanor. Defendant, therefore, must have been
10

1 convicted under Colo. Rev. Stat. Section 18-3-404(1). Section 18-3-404(1) contains
2 no element requiring the sexual contact prohibited under the statute to include sexual
3 penetration, the use of force or coercion, the use of a deadly weapon, or position of
4 authority in perpetration of the offense. Because the potentially equivalent SORN A
5 offenses in this case contain one or more of these additional elements, it follows that
6 the statute under which Defendant was convicted in Colorado is not, on its face,
7 equivalent to a SORNA offense. See Kvech v. N.M Dep 't of Pub. Safety, 987 F.
8 Supp. 	2d 	1162, 	1210-11 	(D.N.M. 	2013) ("Unlike Colorado's Unlawful 	Sexual
9 Contact statute[, Colo. Rev. Stat. Section 18-3-404(1)(a)], New Mexico's criminal
10 sexual contact in the fourth degree requires the additional elements of force or
11 	coercion, or that the perpetrator be armed with a deadly weapon. The Court agrees
12 	... the elements of the statute under which [the plaintiff] was convicted in Colorado[,
13 	Colo. Rev. Stat. Section 18-3-404(1)(a),] is not an equivalent offense to one ofNew
14 Mexico's enumerated sex offenses under SORNA[.]"). We therefore tum to the
15 	question of whether Defendant's actual conduct, had it occurred in New Mexico,
16 	would require registration pursuant to SORNA.
17 	C. 	Defendant's Actual Conduct
18 	1. 	Use of the Presentence Report to Determine Defendant's Actual Conduct
19 	{19} 	We now address the primary issue raised by this appeal: whether the district
20 	court erred in considering the presentence report tendered by the State to determine
11

1 the factual basis for its finding of Defendant' s actual conduct. Defendant argues that
2 the 	district court erred 	in 	considering the 	allegations 	concerning the 	conduct
3 underlying his Colorado conviction contained in the "unsigned, unfiled presentence
4 report" for a factual basis to establish Defendant's actual conduct. Specifically,
5 Defendant 	contends 	that 	the 	unsigned, 	unfiled 	presentence 	report 	"is 	neither
6 sufficiently reliable nor reflective of facts the jury had to have found to support the
7 district court' s equivalency finding. "
8 	{20} 	The State in tum argues that Hall "does not mandate that the [presentence
9 report] is legally insufficient for a court to consider as a component of evidence
10 	establishing equivalency[,]" and that this Court, in State v. Orr, 2013-NMCA-069,
11 	,r 13 , 304 P.3d 449, "expressed approval for using an ' investigative report' to
12 	determine actual conduct." We are unconvinced by the State's reliance on Orr in
13 	this case. In Orr, we concluded that the elements of the North Carolina crime of
14 "taking indecent liberties with children" are not equivalent to any SORNA offense,
15 	and therefore analysis of the defendant's actual conduct was required. Id. ,r,r 5, 10 ,
16 	13 . Because the evidentiary basis for the state's charge that the defendant's actual
17 conduct underlying his North Carolina conviction was supported by no evidence or
18 	documentation from the North Carolina case, we concluded that the record was
19 	insufficient to determine whether the defendant' s conduct, had it occurred in New
20 Mexico, 	would have 	required 	registration pursuant to 	SORNA. 	Id. 	,r,r 	12-13.
12

1 However, the state indicated during the pendency of the appeal that it had obtained
2 several documents, 	including an investigatory report, 	which shed light on the
3 underlying facts of the defendant's North Carolina conviction. Id. ,r 13. Following
4 Hall, we remanded to the district court for further proceedings to determine the
5 defendant 's actual conduct. See Orr, 2013-NMCA-069, ,r 13.
6 	{21} 	Orr does not hold that a mere investigative report, in and of itself, is sufficient
7 under Hall to determine actual conduct for purposes of an equivalency analysis
8 under SORN A. Neither did Orr disturb the gravamen of the Hall Court's standard
9 for determining equivalency-that New Mexico courts are limited to considering
10 	facts 	that the 	out-of-state jury necessarily 	found 	in 	convicting the 	defendant.
11 	Nevertheless, we do agree that, under Hall and Orr, when a properly authenticated,
12 	admissible investigatory or presentence report contains facts necessarily found by
13 	the out-of-state jury, those facts may be considered in a court's equivalency analysis.
14 	Such a showing with regard to the unsigned, untiled presentence report was not made
15 	in this case.
16 	{22} 	Here, 	as 	Defendant points 	out 	m 	his 	brief, 	the 	facts 	contained 	m 	the
17 presentence report
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do[] 	not reflect ( or even purport to 	do 	so) what information was
presented to the jury or what the jury necessarily found. Further the
document does not contain any signature, attestation that anything [in]
it is true, or even some indication that it is the final version of it and
that 	[D]efendant agreed with everything in it or failed to 	contest
anything 	in 	it. 	In 	fact, 	although 	the 	State 	asserts 	the 	Colorado
13

1
2
3
4
sentencing court found the [presentence report] sufficiently reliable for
sentencing purposes, the State submitted no 	evidence showing the
Colorado sentencing court did so or what information the sentencing
court credited or discredited in the [presentence report].
5 In other words, Defendant argues, and we agree, that the presentence report lacks
6 proof of authenticity and reliability, and therefore constitutes inadmissible evidence
7 that the district court erred in considering and determining Defendant's actual
8 conduct underlying his Colorado sexual assault conviction. See Rule 	11-901 (A)
9 NMRA ("To satisfy the requirement of authenticating or identifying an item of
10 	evidence, the proponent must produce evidence sufficient to support a finding that
11 	the item is what the proponent claims it is."); Rule l l-80l(C) NMRA (" Hearsay
12 	[m]eans a statement that ... the declarant does not make while testifying at the
13 	current trial or hearing, and ... a party offers in evidence to prove the truth of the
14 matter asserted in the statement."); Rule 11-802 NMRA ("Hearsay is not admissible
15 	except as provided by these rules[.]"); Rule 	11-803(6), (8) NMRA (stating the
16 requirements for establishing that a public or business record are excepted from the
17 	general rule against admissibility of hearsay); State v. Soto, 2007-NMCA-077, ,r 27,
18 	142 	N.M. 	32, 	162 	P.3d 	187 	("A 	foundation 	is 	ordinarily 	unnecessary 	when
19 	introducing a public record into evidence because a public official is presumed to
20 	properly perform his duty and because it is thus more likely that the public record
21 	will be accurate. However, when questions are raised about the manner in which the
22 	record was made or kept or when other sufficient negative factors are present, a
14

1 determination of trustworthiness must be made by the trial court before admitting
2 the record." (internal quotation marks and citations omitted)), overruled on other
3 grounds by State v. 	Tollardo , 2012-NMSC-008, 275 P.3d 110; State v. Ramirez,
4 	1976-NMCA-101, ~ 47, 89 N.M. 635, 556 P.2d 43 ("Traditional rules of evidence
5 require a party seeking the introduction of documents to establish that the documents
6 are in fact what they purport to be. Because the reports in [the Ramirez] case were
7 stamped with the letterhead of the State of New Mexico does not, without more,
8 indicate that they are records of a regularly conducted activity or factual findings
9 resulting from an investigation made pursuant to authority granted by law. This is
10 particularly true when the defendant seeks to introduce an altered version of the
11 	original report."), overruled on other grounds by Sells v. State, 1982-NMSC-125,
12 	~~ 7-10, 98 N.M. 786, 653 P.2d 162. The federal district court's decision in Kvech
13 	lends this conclusion additional support. In Kvech, the district court ruled that in
14 	determining whether the plaintiffs Colorado conviction under Colo. Rev. 	Stat.
15 	Section 18-3-404( 1)(a) (the same statute under which Defendant was convicted) was
16 	equivalent to a SORNA offense, an affidavit of probable cause for an arrest warrant
17 	for the plaintiff was inadmissible to prove the plaintiffs actual conduct. Kv ech, 987
18 	F. Supp. 2d at 1210-11. The district court reasoned that "[t]he Colorado fact[-]finder
19 	would not have necessarily found all of the facts alleged in" the affidavit when the
20 Colorado court accepted the plaintiffs plea. Id. at 1210.
15

1 {23} 	In so concluding, we also reject the State's reliance upon State v. Lloyd, 132
2 Ohio St. 3d 135, 2012-0hio-2015, ,r 31, 970 N.E.2d 870, and In re Millan, 730
3 N.Y.S.2d 392, 428-29 (N.Y. Sup. Ct. 2001), overruled on other grounds sub nom.
4 People v. Millan, 743 N.Y.S.2d 872 (N.Y. App. Div. 2002). While observing that a
5 presentence report may be considered by the state courts in Ohio and New York in
6 determining a defendant's actual conduct for purposes of equivalency analysis under
7 the sex offender registration statutes in those states, neither case addresses the issue
8 before this Court-whether a district court should be permitted to consider an
9 unsigned, unfiled presentence report in determining a defendant's actual conduct for
10 purposes of SORN A. As such these cases are distinguishable and therefore do not
11 	apply.
12 	2.
13
14 	{24}
Use of the Judgment and Sentence to Determine Defendant's Actual
Conduct
Defendant argues that the Colorado judgment and sentence does not provide
15 	a factual basis to support a finding that Defendant's actual conduct underlying his
16 	Colorado 	conviction, 	had 	it 	occurred 	in 	New 	Mexico, 	would 	have 	required
17 registration under SORNA. Defendant contends that "insofar as he was convicted of
18 	the misdemeanor version [of third degree sexual assault] not involving force or
19 	coercion, the only conclusion supported by the verdict is that the jury did not find
20 	that he used force or coercion in the course of the sexual assault, even if it found that
21 	he did, at some point, batter the victim." We agree.
16

1 {25} 	We repeat that the Colorado judgment and sentence reflects that Defendant
2 was convicted, after a jury trial in Colorado, of one count of third degree sex 1:1al
3 assault, a class 1 misdemeanor, pursuant to Colo. Rev. Stat. Section 18-3-404.
4 Additionally, as we concluded above, the misdemeanor form of third degree sexual
5 assault, described under Colo. Rev. Stat. Section 18-3-404(1), (2), contains no
6 element requiring that the prohibited sexual contact must include sexual penetration,
7 the use of force or coercion, the presence of a deadly weapon, or a position of
8 authority 	in 	commission 	of the 	offense, 	as 	is 	required 	under 	the 	potentially
9 applicable SORNA offenses- 	CSC, CSCM, and CSP. It follows logically from the
10 	Colorado judgment and sentence that the Colorado jury did not necessarily find, in
11 	convicting Defendant of third degree misdemeanor sexual assault, all of the facts
12 	required to convict Defendant of one of the potentially applicable SORN A offenses.
13 	The fact that Defendant was also convicted by the Colorado jury of felony first
14 	degree assault does not prove, as the State asserts, that Defendant used force or
15 	coercion in the commission of the sexual assault, where no admissible evidence was
16 	tendered to the district court drawing a causal connection between the sexual assault
17 	and the assault of the victim. Cf State v. Stevens, 2014-NMSC-011, ,r 40, 323 P.3d
18 	901 (recognizing that there must be evidence of a causal connection between a sex
19 	act and the commission of a felony in order to sustain a conviction for second degree
20 	CSP, which requires the jury to find a person was forced or coerced to engage in a
17

1 sex act during the commission of a felony). Accordingly, based on the record before
2 	it, we conclude that Defendant's actual conduct, as demonstrated by the judgment
3 and sentence, had it occurred in New Mexico, did not constitute an offense requiring
4 registration pursuant to SORNA.
5 	{26} 	Because we conclude that the district court erred in ruling that Defendant's
6 Colorado conviction, had it occurred in New Mexico, required registration pursuant
7 to SORNA, we do not address Defendant's second argument.
8 	CONCLUSION
9 	{27} 	The judgment and sentence is reversed, and this case is remanded to the
10 	district court for further proceedings consistent with this opinion.
11 	{28} 	IT IS SO ORDERED.
12
13
14 	WE CONCUR:
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