 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
 1                                       OPINION

 2 VIGIL, Judge.

 3   {1}   The opinion filed on October 15, 2018, is hereby withdrawn, and this

 4 opinion is filed in its stead. Melvin Winn (Defendant) appeals from the judgment

 5 and sentence entered upon his conditional guilty plea to one count of failure to

 6 register as a sex offender in violation of the Sex Offender Registration and

 7 Notification Act (SORNA), NMSA 1978, §§ 29-11A-1 to -10 (1995, as amended

 8 through 2015). Defendant argues that (1) his misdemeanor Colorado conviction for

 9 third degree sexual assault is not “equivalent” to any SORNA offense; and (2) even

10 assuming his Colorado conviction corresponds to a SORNA offense if he had been

11 an adult, because he was fifteen years old at the time he committed the sexual

12 assault, his conduct constituted a delinquent act or youthful offender offense under

13 New Mexico law that is not equivalent to a “conviction” for a SORNA offense. We

14 agree with 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(1)(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

 5 2014 charged Defendant with one count of failure to register as a sex offender in

 6 violation of SORNA. Defendant filed a motion to dismiss the indictment, under

 7 State v. Foulenfont, 1995-NMCA-028, ¶ 3, 119 N.M. 788, 895 P.2d 1329, arguing

 8 that, as a matter of law, he did not meet the definition of a “sex offender” who has

 9 been convicted of a “sex offense” under SORNA. Citing State v. Hall, 2013-

10 NMSC-001, 294 P.3d 1235, Defendant argued that the sexual offense for which he

11 was convicted in Colorado “does not have the same elements as any of the sex

12 offenses listed” in SORNA, requiring registration as a sex offender in New Mexico

13 and that “[t]he only documentation that the State has provided that [Defendant]

14 meets the definition of a ‘sex offender’ who has been convicted of a ‘sex offense’ .

15 . . . is a [j]udgment of [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

20 sexual contact of a minor (CSCM) or criminal sexual penetration (CSP). To


                                             2
 1 provide a factual basis for this assertion, the State tendered an unfiled, unsigned

 2 presentence report purporting to describe, based on information provided by the

 3 Littleton Police Department, the victim’s and Defendant’s accounts of the conduct

 4 giving rise to his convictions in Colorado.

 5   {5}   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

10 Defendant’s conduct to come within the scope of one of the potentially applicable

11 SORNA offenses. The presentence report, Defendant asserted, was created based

12 on the police report in the case and not, as is required under Hall, based on facts

13 that the jury necessarily found at trial. The State replied that the presentence report

14 clearly established that Defendant’s conduct satisfies the definition of a SORNA

15 offense—to wit, CSCM.

16   {6}   In a written order, the district court denied Defendant’s motion to dismiss.

17 The order states that “Defendant’s conviction if obtained in New Mexico would

18 consist of criminal sexual contact of a minor and would be a registerable offense.

19 For all the above reasons and for the reasons cited in the State’s brief in opposition

20 to the [m]otion, . . . Defendant’s [m]otion is DENIED.”


                                              3
 1   {7}   Thereafter, Defendant entered a conditional guilty plea to the charge of

 2 failure to register as a sex offender conditioned upon Defendant’s reservation of

 3 the right to appeal the district court’s denial of his motion to dismiss the

 4 indictment. This appeal followed.

 5 DISCUSSION

 6   {8}   Contending that his conviction for third degree sexual assault is not

 7 equivalent to a registrable SORNA offense, Defendant argues (1) “[t]he elements

 8 of the Colorado misdemeanor offense of [s]exual [a]ssault in the [t]hird [d]egree

 9 do not correspond to a registrable offense in New Mexico”; and (2) “[t]he State

10 failed to present evidence establishing that [his] actual conduct as found by the

11 Colorado jury met the elements of any registrable offense in New Mexico.”

12 I.      Standard of Review

13   {9}   “In Foulenfont, we stated that it was proper for a district court to decide

14 purely legal matters and dismiss a case when appropriate before trial[,]” where

15 dispositive facts are undisputed. State v. Platero, 2017-NMCA-083, ¶ 7, 406 P.3d

16 557 (internal quotation marks and citation omitted); see Rule 5-601 NMRA.

17 Whether a district court properly grants or denies a defendant’s motion to dismiss

18 an indictment on purely legal grounds presents a question of law that we review de

19 novo. See State v. Muraida, 2014-NMCA-060, ¶ 12, 326 P.3d 1113 (“[W]e review

20 de novo whether the district court erred in granting [a d]efendant’s Foulenfont


                                            4
 1 motion.”); see State v. LaPietra, 2010-NMCA-009, ¶ 5, 147 N.M. 569, 226 P.3d

 2 668 (“The contours of the district court’s power to conduct a pretrial hearing on a

 3 motion to dismiss charges . . . is a legal question reviewed under a de novo

 4 standard.”).

 5   {10}   Additionally, whether Defendant’s Colorado conviction for misdemeanor

 6 third degree sexual assault is “equivalent” to a registrable SORNA offense presents

 7 a question of statutory interpretation that is subject to de novo review. Hall, 2013-

 8 NMSC-001, ¶ 9 (“What constitutes an equivalent offense [under SORNA] involves

 9 a question of statutory interpretation. Interpretation of a statute is an issue of law

10 that we review de novo.”).

11 II.      Analysis

12 A.       SORNA and the Hall Standard for Determining Equivalency

13   {11}   Under SORNA, as it provided at the time pertinent to our analysis, “[a] sex

14 offender residing in this state shall register with the county sheriff for the county in

15 which the sex offender resides.” Section 29-11A-4(A). A “sex offender” includes

16 an individual that “changes residence to New Mexico, when that person has been

17 convicted of a sex offense” in another jurisdiction. Section 29-11A-3(H)(2). A “sex

18 offense” is defined as any of the twelve enumerated sex offenses “or their

19 equivalents in any other jurisdiction[.]” Section 29-11A-3(I). Our Supreme Court

20 held in Hall that


                                              5
 1          an offense is ‘equivalent’ to a New Mexico offense, for purposes of
 2          SORNA, if the defendant’s actual conduct that gave rise to the out-of-
 3          state conviction would have constituted one of the twelve enumerated
 4          offenses requiring registration pursuant to SORNA.

 5 2013-NMSC-001, ¶ 1 (emphasis added).

 6   {12}   In Hall, the defendant moved to New Mexico from California, where he had

 7 a prior conviction, which resulted from a plea agreement, for violating the

 8 California misdemeanor statute prohibiting “annoying or molesting a child under

 9 the age of eighteen.” Id. ¶¶ 1-2 (internal quotation marks and citation omitted).

10 Upon moving to New Mexico, the defendant did not register as a sex offender, and

11 he was charged with failure to register as a sex offender in violation of SORNA.

12 Id. ¶ 3. The defendant filed a motion to dismiss the charge, “arguing that there was

13 no statute in New Mexico equivalent to California’s ‘annoying or molesting’ a

14 minor statute, and therefore his failure to register did not violate SORNA.” Id. ¶ 4.

15 The record contained no stipulations by the defendant concerning his conduct or

16 documents reflecting the proceedings in California. Id. ¶ 28. The district court

17 denied the defendant’s motion, and the defendant entered a conditional guilty plea,

18 reserving the right to appeal the denial of his motion to dismiss. Id. ¶ 4. Based on

19 the record before it, the Court determined that the State presented insufficient facts

20 to establish that the defendant’s actual conduct underlying his California

21 conviction, had it occurred in New Mexico, was equivalent to a SORNA offense,

22 because the State’s allegations on the issue completely lacked substantiation. Id. ¶¶

                                              6
 1 25-28. The case was remanded to the district court for further proceedings with

 2 leave for the defendant to withdraw his guilty plea. Id. ¶ 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. ¶¶ 18-24. “When the elements of the out-

 6 of-state sex offense are precisely the same elements of a New Mexico sex offense,

 7 the inquiry is at an end[,]” and offenses are considered equivalent. Id. ¶ 18. But

 8 “when the elements are dissimilar, courts should consider the defendant’s

 9 underlying conduct to determine whether the defendant’s conduct would have

10 required registration in New Mexico as a sex offender.” Id. The Court interpreted

11 “SORNA to mean that the defendant’s offense in the foreign state, rather than the

12 statute under which the defendant was convicted, must be the equivalent of an

13 enumerated registrable offense in New Mexico.” Id. This means that in order “[t]o

14 determine equivalence, courts must look beyond the elements of the conviction to

15 the 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

18 another jurisdiction when deciding equivalency under SORNA.” Id. ¶ 22. “In

19 essence,” the Court stated, “the question is whether the out-of-state fact-finder

20 necessarily must have found facts that would have proven the elements of [a] New


                                             7
 1 Mexico registrable offense. If so, the alleged sex offender has committed the

 2 equivalent of an enumerated New Mexico sex offense.” Id. ¶ 22. To determine the

 3 factual basis of a conviction resulting from a plea agreement or nolo contendere,

 4 courts may consider “the charging document, plea agreement, or transcript of the

 5 plea hearing” and that in a bench trial, the courts should consider the “bench-trial

 6 judge’s formal rulings of law and findings of fact[.]” Id. ¶¶ 22-23 (internal

 7 quotation marks and citation omitted). The Court also observed that it

 8          realize[d] that in some cases, such as a guilty plea in which there was
 9          no allocution, there will be no factual findings for a New Mexico
10          court to review. In that instance, the court will be limited to
11          comparing the elements of the foreign sex offense to those of the
12          enumerated offenses under SORNA. In some cases, this will mean
13          that out-of-state sex offenders will not have to register in New
14          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,

 2 and we agree.

 3   {17}   The Colorado unlawful sexual contact statute at issue provides in pertinent

 4 part:

 5          (1) Any actor who knowingly subjects a victim to any sexual contact
 6          commits sexual assault in the third degree if:
 7          (a) The actor knows that the victim does not consent; or
 8          (b) The actor knows that the victim is incapable of appraising the
 9          nature of the victim’s conduct; or
10          (c) The victim is physically helpless and the actor knows that the
11          victim is physically helpless and the victim has not consented; or
12          (d) The actor substantially impaired the victim’s power to appraise or
13          control the victim’s conduct by employing, without the victim’s
14          consent, any drug, intoxicant, or other means for the purpose of
15          causing submission[.]

16                ....

17          (1.5) Any person who knowingly, with or without sexual contact,
18          induces or coerces a child . . . to expose intimate parts or to engage in
19          any sexual contact, intrusion, or penetration with another person, for
20          the purpose of the actor’s own sexual gratification, commits sexual
21          assault in the third degree. For the purposes of this subsection (1.5),
22          the term “child” means any person under the age of eighteen years.

23                ....

24          (2) Sexual assault in the third degree is a class 1 misdemeanor, but it
25          is a class 4 felony if the actor compels the victim to submit by use of
26          such force, intimidation, or threat . . . or if the actor engages in the
27          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

 2 unlawful and intentional touching of or application of force, without consent, to the

 3 unclothed intimate parts of another who has reached his eighteenth birthday, or

 4 intentionally causing another who has reached his eighteenth birthday to touch

 5 one’s intimate parts” perpetrated “by the use of force or coercion” or if “the

 6 perpetrator is armed with a deadly weapon”); NMSA 1978, § 30-9-13(A), (B)(2)

 7 (2003) (defining “criminal sexual contact of a minor” as “the unlawful and

 8 intentional touching of or applying force to the intimate parts of a minor or the

 9 unlawful and intentional causing of a minor to touch one’s intimate parts” of a

10 child age thirteen to eighteen when “the perpetrator uses force or coercion” if “the

11 perpetrator is in a position of authority over the child” or “armed with a deadly

12 weapon”); NMSA 1978, § 30-9-11(A) (2009) (defining “criminal sexual

13 penetration” as “the unlawful and intentional causing of a person to engage in

14 sexual intercourse, cunnilingus, fellatio or anal intercourse or the causing of

15 penetration, to any extent and with any object, or the genital or anal openings of

16 another, whether or not there is any emission”).

17   {18}   As we have already stated, the judgment and sentence tendered to the district

18 court, the authenticity of which is not disputed, states that Defendant was

19 convicted of third degree sexual assault in violation of Colo. Rev. Stat. Section 18-

20 3-404. The judgment and sentence further reflects that Defendant’s sexual assault


                                              10
 1 conviction was sentenced as a class 1 misdemeanor. Defendant, therefore, must

 2 have been convicted under Colo. Rev. Stat. Section 18-3-404(1). Section 18-3-

 3 404(1) contains no element requiring the sexual contact prohibited under the

 4 statute to include sexual penetration, the use of force or coercion, the use of a

 5 deadly weapon, or position of authority in perpetration of the offense. Because the

 6 potentially equivalent SORNA offenses in this case contain one or more of these

 7 additional elements, it follows that the statute under which Defendant was

 8 convicted in Colorado is not, on its face, equivalent to a SORNA offense. See

 9 Kvech v. N.M. Dep’t of Pub. Safety, 987 F. Supp. 2d 1162, 1210-11 (D.N.M. 2013)

10 (“Unlike Colorado’s Unlawful Sexual Contact statute[, Colo. Rev. Stat. Section

11 18-3-404(1)(a)], New Mexico’s criminal sexual contact in the fourth degree

12 requires the additional elements of force or coercion, or that the perpetrator be

13 armed with a deadly weapon. The Court agrees . . . the elements of the statute

14 under which [the plaintiff] was convicted in Colorado[, Colo. Rev. Stat. Section

15 18-3-404(1)(a),] is not an equivalent offense to one of New Mexico’s enumerated

16 sex offenses under SORNA[.]”). We therefore turn to the question of whether

17 Defendant’s actual conduct, had it occurred in New Mexico, would require

18 registration pursuant to SORNA.

19 C.    Defendant’s Actual Conduct




                                           11
 1 1.       Use of the Presentence Report to Determine Defendant’s Actual

 2 Conduct

 3   {19}   We now address the primary issue raised by this appeal: whether the district

 4 court erred in considering the presentence report tendered by the State to determine

 5 the factual basis for its finding of Defendant’s actual conduct. Defendant argues

 6 that the district court erred in considering the allegations concerning the conduct

 7 underlying his Colorado conviction contained in the “unsigned, unfiled

 8 presentence report” for a factual basis to establish Defendant’s actual conduct.

 9 Specifically, Defendant contends that the unsigned, unfiled presentence report “is

10 neither sufficiently reliable nor reflective of facts the jury had to have found to

11 support the district court’s equivalency finding.”

12   {20}   The State in turn argues that Hall “does not mandate that the [presentence

13 report] is legally insufficient for a court to consider as a component of evidence

14 establishing equivalency[,]” and that this Court, in State v. Orr, 2013-NMCA-069,

15 ¶ 13, 304 P.3d 449, “expressed approval for using an ‘investigative report’ to

16 determine actual conduct.” We are unconvinced by the State’s reliance on Orr in

17 this case. In Orr, we concluded that the elements of the North Carolina crime of

18 “taking indecent liberties with children” are not equivalent to any SORNA offense,

19 and therefore analysis of the defendant’s actual conduct was required. Id. ¶¶ 5, 10,

20 13. Because the evidentiary basis for the state’s charge that the defendant’s actual


                                             12
 1 conduct underlying his North Carolina conviction was supported by no evidence or

 2 documentation from the North Carolina case, we concluded that the record was

 3 insufficient to determine whether the defendant’s conduct, had it occurred in New

 4 Mexico, would have required registration pursuant to SORNA. Id. ¶¶ 12-13.

 5 However, the state indicated during the pendency of the appeal that it had obtained

 6 several documents, including an investigatory report, which shed light on the

 7 underlying facts of the defendant’s North Carolina conviction. Id. ¶ 13. Following

 8 Hall, we remanded to the district court for further proceedings to determine the

 9 defendant’s actual conduct. See Orr, 2013-NMCA-069, ¶ 13.

10   {21}   Orr does not hold that a mere investigative report, in and of itself, is

11 sufficient under Hall to determine actual conduct for purposes of an equivalency

12 analysis under SORNA. Neither did Orr disturb the gravamen of the Hall Court’s

13 standard for determining equivalency—that New Mexico courts are limited to

14 considering facts that the out-of-state jury necessarily found in convicting the

15 defendant. Nevertheless, we do agree that, under Hall and Orr, when a properly

16 authenticated, admissible investigatory or presentence report contains facts

17 necessarily found by the out-of-state jury, those facts may be considered in a

18 court’s equivalency analysis. Such a showing with regard to the unsigned, unfiled

19 presentence report was not made in this case.




                                           13
 1   {22}   Here, as Defendant points out in his brief, the facts contained in the

 2 presentence report

 3          do[] not reflect (or even purport to do so) what information was
 4          presented to the jury or what the jury necessarily found. Further the
 5          document does not contain any signature, attestation that anything [in]
 6          it is true, or even some indication that it is the final version of it and
 7          that [D]efendant agreed with everything in it or failed to contest
 8          anything in it. In fact, although the State asserts the Colorado
 9          sentencing court found the [presentence report] sufficiently reliable
10          for sentencing purposes, the State submitted no evidence showing the
11          Colorado sentencing court did so or what information the sentencing
12          court credited or discredited in the [presentence report].

13 In other words, Defendant argues, and we agree, that the presentence report lacks

14 proof of authenticity and reliability, and therefore constitutes inadmissible

15 evidence that the district court erred in considering and determining Defendant’s

16 actual conduct underlying his Colorado sexual assault conviction. See Rule 11-

17 901(A) NMRA (“To satisfy the requirement of authenticating or identifying an

18 item of evidence, the proponent must produce evidence sufficient to support a

19 finding that the item is what the proponent claims it is.”); Rule 11-801(C) NMRA

20 (“Hearsay [m]eans a statement that . . . the declarant does not make while

21 testifying at the current trial or hearing, and . . . a party offers in evidence to prove

22 the truth of the matter asserted in the statement.”); Rule 11-802 NMRA (“Hearsay

23 is not admissible except as provided by these rules[.]”); Rule 11-803(6), (8)

24 NMRA (stating the requirements for establishing that a public or business record

25 are excepted from the general rule against admissibility of hearsay); State v. Soto,

                                               14
 1 2007-NMCA-077, ¶ 27, 142 N.M. 32, 162 P.3d 187 (“A foundation is ordinarily

 2 unnecessary when introducing a public record into evidence because a public

 3 official is presumed to properly perform his duty and because it is thus more likely

 4 that the public record will be accurate. However, when questions are raised about

 5 the manner in which the record was made or kept or when other sufficient negative

 6 factors are present, a determination of trustworthiness must be made by the trial

 7 court before admitting the record.” (internal quotation marks and citations

 8 omitted)), overruled on other grounds by State v. Tollardo, 2012-NMSC-008, 275

 9 P.3d 110; State v. Ramirez, 1976-NMCA-101, ¶ 47, 89 N.M. 635, 556 P.2d 43

10 (“Traditional rules of evidence require a party seeking the introduction of

11 documents to establish that the documents are in fact what they purport to be.

12 Because the reports in [the Ramirez] case were stamped with the letterhead of the

13 State of New Mexico does not, without more, indicate that they are records of a

14 regularly conducted activity or factual findings resulting from an investigation

15 made pursuant to authority granted by law. This is particularly true when the

16 defendant seeks to introduce an altered version of the original report.”), overruled

17 on other grounds by Sells v. State, 1982-NMSC-125, ¶¶ 7-10, 98 N.M. 786, 653

18 P.2d 162. The federal district court’s decision in Kvech lends this conclusion

19 additional support. In Kvech, the district court ruled that in determining whether

20 the plaintiff’s Colorado conviction under Colo. Rev. Stat. Section 18-3-404(1)(a)


                                            15
 1 (the same statute under which Defendant was convicted) was equivalent to a

 2 SORNA offense, an affidavit of probable cause for an arrest warrant for the

 3 plaintiff was inadmissible to prove the plaintiff’s actual conduct. Kvech, 987

 4 F. Supp. 2d at 1210-11. The district court reasoned that “[t]he Colorado fact[-

 5 ]finder would not have necessarily found all of the facts alleged in” the affidavit

 6 when the Colorado court accepted the plaintiff’s plea. Id. at 1210.

 7   {23}   In so concluding, we also reject the State’s reliance upon State v. Lloyd, 132

 8 Ohio St. 3d 135, 2012-Ohio-2015, ¶ 31, 970 N.E.2d 870, and In re Millan, 730

 9 N.Y.S.2d 392, 428-29 (N.Y. Sup. Ct. 2001), overruled on other grounds sub nom.

10 People v. Millan, 743 N.Y.S.2d 872 (N.Y. App. Div. 2002). While observing that a

11 presentence report may be considered by the state courts in Ohio and New York in

12 determining a defendant’s actual conduct for purposes of equivalency analysis

13 under the sex offender registration statutes in those states, neither case addresses

14 the issue before this Court—whether a district court should be permitted to

15 consider an unsigned, unfiled presentence report in determining a defendant’s

16 actual conduct for purposes of SORNA. As such these cases are distinguishable

17 and therefore do not apply.

18 2.       Use of the Judgment and Sentence to Determine Defendant’s Actual
19          Conduct

20   {24}   Defendant argues that the Colorado judgment and sentence does not provide

21 a factual basis to support a finding that Defendant’s actual conduct underlying his

                                              16
 1 Colorado conviction, had it occurred in New Mexico, would have required

 2 registration under SORNA. Defendant contends that “insofar as he was convicted

 3 of the misdemeanor version [of third degree sexual assault] not involving force or

 4 coercion, the only conclusion supported by the verdict is that the jury did not find

 5 that he used force or coercion in the course of the sexual assault, even if it found

 6 that he did, at some point, batter the victim.” We agree.

 7   {25}   We repeat that the Colorado judgment and sentence reflects that Defendant

 8 was convicted, after a jury trial in Colorado, of one count of third degree sexual

 9 assault, a class 1 misdemeanor, pursuant to Colo. Rev. Stat. Section 18-3-404.

10 Additionally, as we concluded above, the misdemeanor form of third degree sexual

11 assault, described under Colo. Rev. Stat. Section 18-3-404(1), (2), contains no

12 element requiring that the prohibited sexual contact must include sexual

13 penetration, the use of force or coercion, the presence of a deadly weapon, or a

14 position of authority in commission of the offense, as is required under the

15 potentially applicable SORNA offenses—CSC, CSCM, and CSP. It follows

16 logically from the Colorado judgment and sentence that the Colorado jury did not

17 necessarily find, in convicting Defendant of third degree misdemeanor sexual

18 assault, all of the facts required to convict Defendant of one of the potentially

19 applicable SORNA offenses. The fact that Defendant was also convicted by the

20 Colorado jury of felony first degree assault does not prove, as the State asserts, that


                                             17
 1 Defendant used force or coercion in the commission of the sexual assault, where

 2 no admissible evidence was tendered to the district court drawing a causal

 3 connection between the sexual assault and the assault of the victim. Cf. State v.

 4 Stevens, 2014-NMSC-011, ¶ 40, 323 P.3d 901 (recognizing that there must be

 5 evidence of a causal connection between a sex act and the commission of a felony

 6 in order to sustain a conviction for second degree CSP, which requires the jury to

 7 find a person was forced or coerced to engage in a sex act during the commission

 8 of a felony). Accordingly, based on the record before it, we conclude that

 9 Defendant’s actual conduct, as demonstrated by the judgment and sentence, had it

10 occurred in New Mexico, did not constitute an offense requiring registration

11 pursuant to SORNA.

12   {26}   Because we conclude that the district court erred in ruling that Defendant’s

13 Colorado conviction, had it occurred in New Mexico, required registration

14 pursuant to SORNA, we do not address Defendant’s second argument.

15 CONCLUSION

16   {27}   The judgment and sentence is reversed, and this case is remanded to the

17 district court for further proceedings consistent with this opinion.

18   {28}   IT IS SO ORDERED.



19                                         _________________________________
20                                         MICHAEL E. VIGIL, Judge

                                             18
1 WE CONCUR:



2 _________________________________
3 JULIE J. VARGAS, Judge



4 _________________________________
5 STEPHEN G. FRENCH, Judge




                                  19
