As used in the Sex Offender Registration and Notification Act:
A. "business day" means a day that is not a Saturday, a Sunday or a state holiday;
B. "conviction" means a conviction in any court of competent jurisdiction and includes a deferred sentence, but does not include a conditional discharge;
C. "department" means the department of public safety;
D. "institution of higher education" means a:
(1) private or public post-secondary educational institution;
(2) trade school; or
(3) professional school;
E. "habitually lives" means any place where a sex offender lives for at least thirty days in any three-hundred-sixty-five-day period;
F. "out-of-state registrant" means any person who establishes a residence in New Mexico while the person is required to register as a sex offender in another state or territory;
G. "registration requirement" means any requirement set forth in Section 29-11A-4 NMSA 1978 that requires a sex offender to register; provide information, including a DNA sample; renew, revise or change registration information; or provide written notice or disclosure regarding the sex offender's status as a sex offender;
H. "sex offender" means a person who:
(1) is a resident of New Mexico who is convicted of a sex offense pursuant to state, federal, tribal or military law;
(2) changes residence to New Mexico, when that person has been convicted of a sex offense pursuant to state, federal, tribal or military law;
(3) does not have an established residence in New Mexico, but lives in a shelter, halfway house or transitional living facility or stays in multiple locations in New Mexico and who has been convicted of a sex offense pursuant to state, federal, tribal or military law; or
(4) is a resident of another state and who has been convicted of a sex offense pursuant to state, federal, tribal or military law, but who is:
(a) employed full time or part time in New Mexico for a period of time exceeding fourteen days or for an aggregate period of time exceeding thirty days during any calendar year, including any employment or vocation, whether financially compensated, volunteered or for the purpose of government or educational benefit; or
(b) enrolled on a full-time or part-time basis in a private or public school or an institution of higher education in New Mexico;
I. "sex offense" means any of the following offenses or their equivalents in any other jurisdiction:
(1) aggravated criminal sexual penetration or criminal sexual penetration in the first, second, third or fourth degree, as provided in Section 30-9-11 NMSA 1978;
(2) criminal sexual contact in the fourth degree, as provided in Section 30-9-12 NMSA 1978;
(3) criminal sexual contact of a minor in the second, third or fourth degree, as provided in Section 30-9-13 NMSA 1978;
(4) sexual exploitation of children, as provided in Section 30-6A-3 NMSA 1978;
(5) sexual exploitation of children by prostitution, as provided in Section 30-6A-4 NMSA 1978;
(6) kidnapping, as provided in Section 30-4-1 NMSA 1978, when committed with the intent to inflict a sexual offense;
(7) false imprisonment, as provided in Section 30-4-3 NMSA 1978, when committed with the intent to inflict a sexual offense;
(8) aggravated indecent exposure, as provided in Section 30-9-14.3 NMSA 1978;
(9) enticement of child, as provided in Section 30-9-1 NMSA 1978;
(10) incest, as provided in Section 30-10-3 NMSA 1978, when the victim is younger than eighteen years of age;
(11) child solicitation by electronic communication device, as provided in Section 30-37-3.2 NMSA 1978, for convictions occurring on or after July 1, 2013;
(12) solicitation to commit criminal sexual contact of a minor in the second, third or fourth degree, as provided in Sections 30-9-13 and 30-28-3 NMSA 1978; or
(13) attempt to commit any of the sex offenses set forth in Paragraphs (1) through (11) of this subsection, as provided in Section 30-28-1 NMSA 1978; and
J. "social networking site" means an internet web site that facilitates online social interaction by offering a mechanism for communication with other users, where such users are likely to include a substantial number of minors under the age of sixteen, and allowing users, through the creation of web pages, profiles or other means, to provide information about themselves that is available to the public or to other users.
History: Laws 1995, ch. 106, § 3; 1999, ch. 19, § 3; 2000, ch. 8, § 1; 2003 (1st S.S.), ch. 1, § 10; 2005, ch. 279, § 1; 2007, ch. 68, § 1; 2007, ch. 69, § 5; 2013, ch. 152, § 1.
ANNOTATIONSThe 2013 amendment, effective July 1, 2013, added terms and definitions; added Subsections A, C, E, F and J; in Paragraph (6) of Subsection I, after "Section 30-4-1 NMSA 1978", deleted "the victim is less than eighteen years of age and the offender is not a parent of the victim" and added "committed with the intent to inflict a sexual offense"; in Paragraph (7) of Subsection I, after "Section 30-4-3 NMSA 1978, when", deleted "the victim is less than eighteen years of age and the offender is not a parent of the victim" and added "committed with the intent to inflict a sexual offense"; and in Paragraph (11) of Subsection I, after "Section 30-37-3.2 NMSA 1978", added "for convictions occurring on or after July 1, 2013":
Applicability. — Laws 2013, ch. 152, § 5 provided that the provisions of the amendments to the Sex Offender Registration and Notification Act enacted by Laws 2013, ch. 152 are applicable to a person who, on or after July 1, 2013, is found guilty of committing a sex offense.
The 2007 amendment, effective July 1, 2007, defined "sex offender" as a New Mexico resident who is convicted of a sex offense pursuant to state, federal, tribal or military law; and defined "sex offense" to mean offenses or their equivalents in any other jurisdiction, including aggravated criminal sexual penetration.
Applicability. — Laws 2007, ch. 69, § 8 provided that Laws 2007, ch. 69, § 5 was applicable to a person convicted of a sex offense on or after July 1, 1995 and a person convicted of a sexual offense prior to July 1, 1995 and who, on July 1, 1995, was still incarcerated, on probation or on parole for commission of that sex offense.
The 2005 amendment, effective July 1, 2005, added the definition of "conviction" in Subsection A; added the definition of "institution of higher education" in Subsection B; added the definition of "registration requirement" in Subsection C; deleted the requirement that a person be eighteen years of age or older in the definition of "sex offender" in Subsection D; added the reference to tribal law in Subsection D(2), (3) and (5); added Subsection D(4) to provide that a sex offender is a person who does not have an established residence in New Mexico, but stays in temporary quarters in New Mexico and who has been convicted of a sex offense; provided in Subsection B(5)(a) that employment includes any employment or vocation, whether financially compensated, volunteered or for the purpose of government or educational benefit; provided in Subsection B(5)(b) that the person is enrolled in an institution of higher education in New Mexico; deleted the former reference in Subsection B(5)(b) secondary school, trade school, professional institution or an institution of higher education; and added Subsections E(8) through (10) to provide that sex offense includes aggravated indecent exposure, enticement of child and incest respectively.
Applicability. — Laws 2005, ch. 279, §14, effective July 1, 2005, provided that Laws 2005, ch. 279, §§ 1 through 13 apply to a person convicted of a sex offense on or after July 1, 2005 and a person convicted of a sex offense prior to July 1, 2005 and who, on July 1, 2005, was still incarcerated, on probation or on parole for commission of that sex offense.
The 2003 (1st S.S.) amendment, effective February 3, 2004, inserted "second" in Paragraphs (3) and (8) of Subsection B, and deleted "Subsection A, B or C of" preceding "Section" in Paragraph (4) of that subsection.
The 2000 amendment, effective July 1, 2000, deleted "employed in New Mexico or attends school in New Mexico; and" from the end of Subsection A(4), added Subsections A(4)(a) and A(4)(b), added Subsections B(6) and B(7) and redesignated former Subsections B(6) and B(7) as present Subsections B(8) and B(9), substituted "(7)" for "(5)" in present Subsection B(9).
The 1999 amendment, effective July 1, 1999, inserted "and Notification" in the introductory language; added "a person eighteen years of age or older" in Subsection A; in Paragraph A(1), substituted "who is a resident of New Mexico who is" for "a person" and substituted "in New Mexico" for "on or after July 1, 1995; or"; in Paragraph A(2), deleted "a person" at the beginning, and substituted "pursuant to state, federal or military law" for "on or after July 1, 1995; and"; added Paragraphs A(3), A(4), B(6), and B(7); and made minor stylistic changes.
Determination of equivalency of sex offenses. — Where defendant, who had been convicted of taking indecent liberties with children in North Carolina, moved to New Mexico; although there was no one-to-one correlation between the North Carolina offense and a single New Mexico sex offense, indecent liberties with children encompassed several sex offenses in New Mexico, the district court was required to determine if defendant's actual conduct supporting defendant's North Carolina conviction would have constituted any of the sex offenses under the New Mexico Sex Offender Registration and Notification Act, Section 29-11A-1 NMSA 1978 et seq. State v. Orr, 2013-NMCA-069, 304 P.3d 449.
Equivalent offense is based on actual conduct. — An offense is "equivalent" to a New Mexico offense, for purposes of the New Mexico Sex Offender Registration and Notification Act, if the defendant's actual conduct that gave rise to the out-of-state conviction would have constituted one of the enumerated offenses requiring registration pursuant to the Act. When the defendant's out-of-state conviction results from a plea agreement, courts may look to the charging documents, the defendant's written plea agreement, and the transcript of the plea hearing to determine the defendant's actual conduct and whether the conduct would have constituted one of the enumerated offenses. State v. Hall, 2013-NMSC-001, 294 P.3d 1235, rev'g 2011-NMCA-047, 149 N.M. 546, 252 P.3d 770.
Failure to prove equivalent offense. — Where defendant had been convicted in California of a misdemeanor offense of annoying or molesting a child under the age of eighteen; the state alleged that the California offense was equivalent to the New Mexico crime of sexual contact of a minor in the fourth degree because defendant's California conviction was based on defendant inappropriately touching the private parts of several boys that defendant lifted up to look into a camera's viewfinder; and the state failed to provide evidence to support the elements of the New Mexico offense by establishing the California victim's ages at the time of the offense or, other than saying that defendant touched the victims' clothed private parts, where on their bodies defendant touched the California victims, a court could not determine whether defendant's conduct violated one of the enumerated offenses in Section 29-11A-3 NMSA 1978 because the record was insufficient for a court to determine in what conduct defendant engaged that gave rise to defendant's California conviction. State v. Hall, 2013-NMSC-001, 294 P.3d 1235, rev'g 2011-NMCA-047, 149 N.M. 546, 252 P.3d 770.
Sex offense. — Defendant's conviction in California of the misdemeanor offense of annoying or molesting a child, which does not require touching or application of force, was not the equivalent of sexual contact of a minor, which requires touching or the application of force, was not a "sex offense" as that term is defined in the Sex Offender Registration and Notification Act, and did not require defendant to register as a sex offender in New Mexico. State v. Hall, 2011-NMCA-047, 149 N.M. 546, 252 P.3d 770, cert. granted, 2011-NMCERT-005, 150 N.M. 666, 265 P.3d 717.
Determining equivalency under SORNA. — Where defendant appealed from the judgment and sentence entered upon his conditional guilty plea to one count of failure to register as a sex offender, the trial court erred in ruling that defendant's Colorado conviction, had it occurred in New Mexico, required registration pursuant to SORNA, because the statute under which defendant was convicted in Colorado is not, on its face, equivalent to a SORNA offense, and the trial court's reliance on an unsigned and unfiled presentence report was not sufficient to determine actual conduct for purposes of an equivalency analysis under SORNA. The presentence report lacked proof of authenticity and reliability and therefore constituted inadmissible evidence that the trial court erred in considering and determining defendant's actual conduct underlying his Colorado sexual assault conviction. State v. Winn, 2019-NMCA-011.
A nolo contendere plea which is a conviction in a foreign jurisdiction is a conviction in New Mexico. — Where petitioner pled nolo contendere to engaging in a sex act with a child under eighteen years old in Florida; the Florida court required petitioner to serve thirty days imprisonment, two years of community control, five years of probation, pay restitution for mental counseling of the victim, have no unsupervised contact with children under eighteen years old, surrender the petitioner's teaching credentials and register as a sex offender in Florida; Florida did not adjudicate petitioner's guilt; and Florida law defined a conviction of a sex offense for purposes of sex offender registration to be a determination of guilt as the result of a plea of nolo contendere regardless of whether adjudication is withheld, Florida's disposition of petitioner's case was a conviction for purposes of SORNA. Vives v. Verzino, 2009-NMCA-083, 146 N.M. 673, 213 P.3d 823.
"Sex offender". — A court order granting defendant an early discharge from supervised probation and dismissing the charges against him did not eradicate his convictions and his status as a sex offender under Subsection A(1). State v. Brothers, 2002-NMCA-110, 133 N.M. 36, 59 P.3d 1268, cert. denied, 133 N.M. 30, 59 P.3d 1262.
Application of multiple amendments of definition of "sex offense". — Where in 2012, defendant pled guilty to the charge of solicitation of a child by electronic communication device; in 2007, the legislature enacted two acts amending Sections 29-11A-3 and 29-11A-5 NMSA 1978 which were signed on the same day by the governor; Laws 2007, ch. 68 created the new criminal offense of child solicitation by electronic communication device; Laws 2007, ch. 69 created the new crime of aggravated criminal sexual penetration; in 2012, Section 12-1-8 NMSA 1978 provided that if, in the same legislative session, the legislature enacted two or more acts amending the same section of the New Mexico Statutes Annotated, then the last act signed by the governor is presumed to be the law and shall be compiled into the NMSA; and Laws 2007, ch. 69 was compiled into the NMSA, child solicitation by electronic communication device was not a SORNA-covered crime in 2012 when defendant pled guilty and defendant was not subject to SORNA. State v. Ho, 2014-NMCA-038, cert. granted, 2014-NMCERT-003.