State v. Billington

Certiorari Denied, January 7, 2009, No.31,443

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-014

Filing Date: October 21, 2008

Docket No. 26,984

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

CURTIS BILLINGTON,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY
Stephen Quinn, District Judge

Gary K. King, Attorney General
Margaret McLean, Assistant Attorney General
Santa Fe, NM

for Appellee

Hugh W. Dangler, Chief Public Defender
Nina Lalevic, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION

KENNEDY, Judge.

{1} Defendant Curtis Lee Billington registered twice as a sex offender and was arrested
the following year when he did not register. Scant evidence, if any, was presented at trial
that he had ever been apprised so as to be on notice of the registration duties of the convicted

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sex offender under the Sex Offender Registration and Notification Act (SORNA). NMSA
1978, §§ 29-11A-1 to -10 (1995, as amended through 2007). He appeals his conviction for
failure to renew his registration annually as a sex offender contrary to Section § 29-11A-
4(N).

{2} On appeal, Defendant centers his arguments around the fact that he was never
formally notified by an agent of the State of New Mexico concerning the requirement that
he register. He asserts that at trial the State presented insufficient evidence of such notice
to convict him and that the failure of the State to provide him with notice as required by
statute violates his right to due process. We reverse, concluding that the State provided
insufficient evidence to prove beyond a reasonable doubt that Defendant willfully failed to
renew his registration.

FACTS AND PROCEDURAL HISTORY

{3} In April 1993, Defendant was convicted of three counts of criminal sexual contact,
each a fourth-degree felony. Sentencing was suspended, and Defendant was placed on
supervised probation for four and one-half years. Because the conviction preceded the 1995
enactment of New Mexico’s laws requiring registration of convicted sex offenders,
Defendant’s judgment and sentence contained no mention of any requirement that he register
as a sex offender. See § 29-11A-7. In 1998 after Defendant was released from probation,
the statute required that he register as a sex offender for ten years following his release date.
After receiving a letter in 2003 informing him that he was required to register, Defendant
registered as a sex offender for the first time since his release from probation. That letter
was not an exhibit in the trial record. Defendant registered again in 2004 but failed to
register after that.

{4} Deputy Sheriff Sandy Loomis testified that he was an investigator for the Curry
County Sheriff’s Department and was responsible for maintaining the sex offender registry
as dictated by statute. Deputy Loomis made contact with Defendant in 2005 for purposes
of performing a “validation” in which he annually visited sex offenders to verify the
information in the sex offender database. When he became aware that Defendant had not
registered in 2005, Deputy Loomis obtained a warrant for Defendant’s arrest for failing to
register. Defendant was arrested and charged with one count of failure to renew his
registration annually.

{5} Deputy Loomis testified that he used Defendant’s 2004 sex offender registration as
a basis for his information about Defendant. He also testified that Defendant initially
registered as a sex offender in 2003, after the Sheriff’s office sent him a letter notifying him
of the registration requirement. That letter was never entered into evidence, although
Defendant’s 2003 and 2004 registrations and the judgment and sentence document from his
1993 convictions were entered into evidence. When Deputy Loomis “validated”
Defendant’s sex offender registry information, he did not inform Defendant of his continuing
duty to register. Deputy Loomis investigated Defendant’s status with the State Probation
and Parole Division but did not have a record of what Defendant may have signed regarding
the requirement that he register annually.

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{6} At trial, Defendant argued that because he did not receive notice pursuant to the
statute that he was required to register, he could not be convicted under the statute. After
the close of the State’s evidence, Defendant requested a directed verdict. The district court
denied the motion. Defendant was convicted and received an eighteen-month suspended
sentence.

DISCUSSION

{7} Defendant raises two issues. First, Defendant argues that because he did not receive
notice of his annual duty to register as a sex offender, the State failed to provide sufficient
evidence to prove, beyond a reasonable doubt, that Defendant willfully failed to renew his
sex offender registration. Second, Defendant argues that it is a violation of his right to due
process to be convicted of failure to register when he did not receive adequate notice.

Standard of Review

{8} In this appeal, we must “effectuate the Legislature’s intent” by “looking first to the
words the Legislature chose and the plain meaning of the language.” State v. Moya, 2007-
NMSC-027, ¶ 6, 141 N.M. 817, 161 P.3d 862. We must, however, avoid adopting a strict
construction of the statutory language if it would convey an absurd or unreasonable result.
Id. We interpret the statute “according to its obvious spirit or reason.” Id. (internal
quotation marks and citation omitted). We review and interpret the language of the statute
under a de novo standard of review. State v. Simmons, 2006-NMSC-044, ¶ 6, 140 N.M. 311,
142 P.3d 899.

{9} When we review for sufficiency of evidence to support a conviction, we engage in
a two-step process. State v. Apodaca, 118 N.M. 762, 766, 887 P.2d 756, 760 (1994). We
start by viewing the evidence in the light most favorable to the verdict, resolving all conflicts
and indulging all reasonable inferences in favor of the verdict. Id. at 765-66, 887 P.2d at
759-60; State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. Second,
“we make a legal determination of whether the evidence viewed in this manner could justify
a finding by any rational trier of fact that each element of the crime charged has been
established beyond a reasonable doubt.” Apodaca, 118 N.M. at 766, 887 P.2d at 760
(internal quotation marks and citation omitted). We will not disturb a verdict that is
supported by substantial evidence. State v. Anaya, 98 N.M. 211, 212, 647 P.2d 413, 414
(1982).

Defendant’s Failure to Renew His Registration as a Sex Offender

{10} It is undisputed that Defendant was required to register for ten years following his
release from probation. See Section 29-11A-5(E). Defendant does not dispute that he failed
to renew his registration as a sex offender on or before December 31, 2005. Defendant
argues that because he did not receive written notice required by the statute, the State’s
evidence failed to show that he willfully or knowingly did not comply with the registration
requirement.

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 {11} There are two statutory provisions that relate to Defendant’s situation, and both fall
under SORNA.1 Section 29-11A-4(N) states that “[a] sex offender who willfully or
knowingly fails to comply with the registration requirements . . . is guilty of a fourth degree
felony[.]”

{12} Relevant parts of Section 29-11A-7, which is entitled “Notice to sex offenders of
duty to register,” read as follows:
A. A court shall provide a sex offender convicted in that court with
written notice of his duty to register . . . . The written notice shall be
included in judgment and sentence forms provided to the sex offender.
....
B. The corrections department, a municipal or county jail or a detention
center at the time of release of a sex offender in its custody, shall provide a
written notice to the sex offender of his duty to register[.]

(Emphasis added.)

{13} The requirement of willfulness in the statute establishes an element of mens rea.
“‘Willfully’ denotes the doing of an act without just cause or lawful excuse.” State v.
Masters, 99 N.M. 58, 60, 653 P.2d 889, 891 (Ct. App. 1982); State v. Sheets, 94 N.M. 356,
366, 610 P.2d 760, 770 (Ct. App. 1980) (“To meet the willfulness requirement, all that is
required is proof that the person acted intentionally in the sense that he was aware of what
he was doing.”). “The presence or absence of notice to the defendant may have a bearing
at trial on the question of willfulness, depending upon the other facts of the case.” Masters,
99 N.M. at 60, 653 P.2d at 891. Therefore, this presents a dual requirement for proof of a
defendant’s guilt: a defendant must have known that he was required to register annually
for ten years, and the defendant did not do so despite this knowledge. Lambert v. People of
the State of California, 355 U.S. 225, 229 (1957). While the knowledge may be proven
circumstantially, “the proof must be specific to this defendant.” Commonwealth v. Ramirez,
865 N.E.2d 1158, 1161 (Mass. App. Ct. 2007) (emphasis in original). The circumstances
of Defendant’s arrest and prosecution in this case currently give unequivocally sufficient
notice to Defendant of his obligations under SORNA. State v. Clark, 880 P.2d 562, 565
(Wash. Ct. App. 1994) (holding that a defense of lack of knowledge is only good for the first
offense).

{14} The first question that we consider, then, is whether the State provided sufficient
evidence to prove beyond a reasonable doubt that Defendant knew of his duty to register
annually as a sex offender. We hold that the State did not.

{15} Defendant’s judgment and sentence clearly did not inform Defendant of an annual
duty to comply with SORNA. Defendant received the judgment and sentence in 1993,
before SORNA was passed into law. No testimony at trial indicated that when Defendant

1
For a complete history of SORNA, see State v. Druktenis, 2004-NMCA-032, ¶¶ 5-7, 135 N.M.
223, 86 P.3d 1050.

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was released from probation, he was informed by Probation and Parole of a duty to register
as a sex offender. The State’s only witness at trial regarding notice to Defendant was Deputy
Loomis, who testified about a letter sent to Defendant, apparently informing him of his duty
to register. However, that letter is not included in the record on appeal, and we do not
consider it. See State v. Duncan, 95 N.M. 215, 216, 619 P.2d 1259, 1260 (Ct. App. 1980).
Even in the process of “validating” Defendant in 2005, Loomis could not testify that he
discussed the obligation of annual registration with Defendant but instead testified that when
he was talking with Defendant during his “validation” visit, he specifically did not do so.

{16} The State rests the bulk of its argument on Loomis’ testimony that Defendant
registered twice and that those registrations prove that Defendant knew of his continuing
duty to register as a sex offender. It places great emphasis on the registration forms provided
to Defendant on the two occasions when he appeared to register, but we do not consider the
State’s argument persuasive that the registration forms provided the required notice to
continue to register annually. The only potential notice on this form is in one line at the top
of the first page. The line has an empty space for entry of a check mark after each of the
terms “New:” and “Annual Renewal:” followed by the term “(Check One).” There was no
testimony that Defendant was the person required to enter a check mark in one of the spaces
nor was there testimony that anyone informed Defendant during the registration process that
he was required to register annually. The spaces for the check marks indicate to us that the
person responsible for completing the registration form was required to note whether the sex
offender was registering for the first time or renewing registration on an annual basis.

{17} The second page of the registration form includes a box containing blanks for the
name, title, agency, address, and telephone number of the person performing the registration
function (Registrar). A different Registrar performed Defendant’s registration for the 2003
and 2004 registration years, but both Registrars were employees of the Curry County
Sheriff’s Department. Based on clear distinctions in handwriting, it is apparent that
Defendant merely signed and dated both forms in the designated spaces on the second page
underneath the locations designated for all other entries while the Registrar in each case hand
wrote all of the other entries onto each form.

{18} The State also argues that the presence of Defendant’s signature on the registration
forms completed in 2003 and 2004 establishes notice to Defendant that he was required to
renew his registration annually. Defendant contends that the registration forms (which
except for the check spaces mentioned above are silent on the requirement of annual
registration) were not adequate notice of a requirement that he register annually from the
date of his release from probation. We agree with Defendant’s argument. Absent testimony
to establish that Defendant was made aware of an annual duty to register and absent any
evidence proving that Defendant was given written notice of a duty to register annually for
ten years after his release date, we cannot accept Defendant’s signature on the registration
form as notice of his duties under SORNA.

{19} The strictures of Masters compel us to consider the surrounding facts of this
particular case when determining whether there was enough evidence to convict Defendant
of willfully failing to comply with the annual registration requirements. Masters, 99 N.M.

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at 60, 653 P.2d at 891. While we recognize that the question of willfulness is one for the
fact-finder, id.; see UJI 14-2229 NMRA (instructing the jury to find that “[t]he defendant’s
failure to appear was willful, without sufficient justification or excuse”), we conclude that
there was not sufficient evidence to convict Defendant of failure to comply with the
registration requirements.

{20} In the absence of some proof by the State tending to show voluntary avoidance on
the part of a defendant, there can be no presumption of notice. City of Albuquerque v.
Juarez, 93 N.M. 188, 191, 598 P.2d 650, 653 (Ct. App. 1979), overruled on limited grounds
in State v. Herrera, 111 N.M. 560, 565, 807 P.2d 744, 749 (Ct. App. 1991). Willfulness is
an intent requirement; the defendant must have intended to fail to renew his registration. See
State v. Elliott, 2001-NMCA-108, ¶ 9, 131 N.M. 390, 37 P.3d 107. A defendant cannot be
convicted for a failure through mere carelessness to renew his registration. See id.
Defendant argues that the lack of notice that registration was a required annual event for the
ten years following his release from parole provides him with a lawful excuse for his failure
to re-register. For such a narrow argument, we are compelled under the facts of this case to
construct a very narrow rule as we agree with his position.

{21} Though noting that Lambert, 355 U.S. at 229-30, and subsequent cases concerning
registration requirements akin to ours treat a failure of notice as a due process violation, we
do not address Defendant’s argument that he was not afforded due process through
notification of the registration requirement because we reverse, holding that the State did not
present sufficient evidence to prove beyond a reasonable doubt that Defendant willfully
failed to renew his registration annually.

CONCLUSION

{22} Having concluded that the State failed to prove beyond a reasonable doubt that
Defendant willfully failed to renew his sex offender registration annually, we reverse
Defendant’s conviction.

{23} IT IS SO ORDERED.

RODERICK T. KENNEDY, Judge

WE CONCUR:

MICHAEL D. BUSTAMANTE, Judge

MICHAEL E. VIGIL, Judge

Topic Index for State v. Billington, No. 26,984

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AE Appeal and Error
AE-SR Standard of Review

CL Criminal Law
CL-SX Sex Offenses

CA Criminal Procedure
CA-DU Due Process
CA-NO Notice
CA-RU Reasonable Doubt
CA-SE Substantial or Sufficient Evidence

ST Statutes
ST-LI Legislative Intent

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