State v. Burke

2008 NMSC 052, 192 P.3d 767, 144 N.M. 772
CourtNew Mexico Supreme Court
DecidedAugust 26, 2008
Docket30,474
StatusPublished
Cited by9 cases

This text of 2008 NMSC 052 (State v. Burke) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Burke, 2008 NMSC 052, 192 P.3d 767, 144 N.M. 772 (N.M. 2008).

Opinion

OPINION

MAES, Justice.

{1} This appeal arises from a conviction for failure to register as a sex offender, contrary to the provisions of the Sex Offender Registration and Notification Act (SORNA), NMSA 1978, §§ 29-11A-1 to -10 (1995, as amended). SORNA mandates the establishment and maintenance of a central sex offender registry and places the responsibility of gathering information and enforcing the registration requirements on county sheriffs. Section 19-11A-2(B). The Curry County Sheriffs Department (CCSD) implemented a policy of registering sex offenders only between 1:00 p.m. and 4:00 p.m. on Wednesdays. Defendant argued at trial and on appeal that the CCSD’s registration policy prevented him from meeting SORNA’s requirements for timely registration; that the CCSD’s registration policy is inconsistent with SORNA; and, therefore, Defendant’s conviction should be reversed. The Court of Appeals affirmed Defendant’s conviction on the ground that the CCSD’s policy is consistent with the statutory mandate of SORNA for processing sex offender registrations. On certiorari review, we hold that Defendant and the Court of Appeals’ Opinion have misconstrued this appeal by hanging Defendant’s conviction on the validity of the CCSD’s registration policy. The only issue raised by Defendant’s appeal is whether his conviction is supported by sufficient evidence. We affirm Defendant’s conviction on that ground.

FACTS AND PROCEEDINGS BELOW

{2} Defendant is a registered sex offender in Curry County, and SORNA requires that Defendant renew his registration annually before December 31 with the CCSD. See Section 29-llA-4(L)(2). Defendant timely registered in 2003 and 2004, but he failed to register before December 31, 2005.

{3} At trial for failure to comply with SORNA’s registration requirements, Defendant argued that he was effectively prevented from timely registration due to the CCSD’s policy of limiting the time for sex offender registration to Wednesdays between 1:00 p.m. and 4:00 p.m. Defendant testified that he attempted to register on Thursday, December 29, 2005, but, at the Sheriffs Office, he was told to come back “next Wednesday” in compliance with the policy. Defendant testified that he intended to return the following Wednesday (January 4, 2006), but he was arrested for his failure to register before he could do so.

{4} The State offered contravening testimony from Deputy Sheriff Sandy Loomis, who was in charge of sex offender registrations, and members of the CCSD staff. Deputy Sheriff Loomis testified that, between December 28 and December 30, 2005, he had suspended the Wednesday registration policy and advised staff members that “no one was to be turned away.” The staff members confirmed that the deputy sheriff had suspended the Wednesday registration policy. The staff members also testified that they neither recalled Defendant coming into the Sheriffs Office on Thursday, December 29, nor remembered anyone being turned away.

{5} At the close of the State’s evidence before Defendant presented his case, Defendant made a motion for directed verdict. Defendant argued that the CCSD’s policy limiting the registration hours to Wednesday afternoons does not comply with SORNA Defendant further argued that the CCSD’s policy violates the State’s preemption of sex offender registration under Section 29-11A-9, which prohibits cities, counties, home rule municipalities, and other political subdivisions from adopting or affecting any ordinance, rule, regulation, resolution, or statute regarding sex offender registration. The district court noted that the standard for overcoming a motion for directed verdict is dependent on whether the State has produced enough evidence relating to the elements of the crime charged. The court also noted that Defendant had already admitted that he was required to register under SORNA and had failed to do so. Finding that the State had provided evidence showing that Defendant had an “opportunity to register,” the court found that the State had met its burden and denied the motion.

{6} After the close of evidence, the case was submitted to the jury. The jury instructions for failure to comply with SORNA’s registration requirements required the jury to determine, inter alia, whether “Defendant willfully and knowingly failed to renew his registration as a sex offender before the 31st day of December, 2005.” The instructions did not require the jury to determine whether the CCSD’s registration policy complied with SORNA. The jury convicted Defendant of failure to comply with the sex offender registration requirements, a fourth-degree felony. Section 29-llA-4(N).

{7} Defendant appealed two issues to the Court of Appeals: (1) “Whether the policy of registering sex offenders only on Wednesday from 1:00 pm to 4:00 pm as implemented by Curry County Deputy Sheriff, Sandy Loomis, complies with the registration requirements as set forth by the legislature”; and (2) “[w]hether the restrictive registration compliance policy as implemented by Sandy Loomis of the Curry County Sheriffs Office violates the preemption statute created and enacted in January 2005.”

{8} The Court of Appeals framed the appeal as one requiring the Court to interpret the legislative mandate in SORNA, requiring county sheriffs to implement the registration scheme at the local level. State v. Burke, 2007-NMCA-093, ¶ 8, 142 N.M. 218, 164 P.3d 99. The Court determined that Defendant’s appeal turned on whether the CCSD’s registration policy is reasonably consistent with that mandate. Id. ¶ 9. To that end, the Court balanced the public interest in gathering and maintaining accurate information on sex offenders against offenders’ private interest in having a reasonable opportunity to complete the registration process. Id. ¶ 12. The Court held that the CCSD’s registration policy represents a reasonable balance of interests and is consistent with SORNA’s mandate. Id. ¶ 13-14.

{9} Defendant filed a petition for writ of certiorari, presenting one issue to this Court: Whether the sex offender registration schedule instituted by the CCSD comports with the intent of SORNA. We granted certiorari to clarify the scope of appellate review in this case.

DISCUSSION

{10} Defendant does not challenge his status as a sex offender, his obligation to renew his registration, or his knowledge that he was required to register as a sex offender before December 31, 2005. Defendant’s sole contention is that he did not willfully fail to register because he was turned away on December 29, a Thursday, and told to return on January 4, a Wednesday, in compliance with the CCSD’s sex offender registration policy.

{11} Defendant’s presentation of the issues and the Court of Appeals’ analysis belie the actual, appealable issues that were before the district court. Whether the policy constitutes a reasonable interpretation of SORNA’s registration requirements was not at issue at trial. Defendant’s argument that the policy prevented him from registering was properly addressed within the context of the State’s burden of proving all the elements of the crime. Specifically, the State had the burden to prove that Defendant’s failure to register was willful.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Crawford
New Mexico Court of Appeals, 2022
State v. Kesterson
New Mexico Court of Appeals, 2020
State v. Casaus
New Mexico Court of Appeals, 2018
Rayos v. State ex rel. N.M. Dep't of Corrections
New Mexico Court of Appeals, 2014
Baker v. Hedstrom
2012 NMCA 073 (New Mexico Court of Appeals, 2012)
State v. Etcitty
New Mexico Court of Appeals, 2011
State v. R Herrera
New Mexico Court of Appeals, 2009

Cite This Page — Counsel Stack

Bluebook (online)
2008 NMSC 052, 192 P.3d 767, 144 N.M. 772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-burke-nm-2008.