                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                         Docket No. 36775

STATE OF IDAHO,                                    )      2010 Unpublished Opinion No. 565A
                                                   )
       Plaintiff-Respondent,                       )      Filed: August 4, 2010
                                                   )
v.                                                 )      Stephen W. Kenyon, Clerk
                                                   )
WADE COLLINS,                                      )      AMENDED OPINION
                                                   )      THE COURT’S PRIOR OPINION
       Defendant-Appellant.                        )      DATED JULY 27, 2010 IS HEREBY
                                                   )      AMENDED
                                                   )
                                                   )      THIS IS AN UNPUBLISHED
                                                   )      OPINION AND SHALL NOT
                                                   )      BE CITED AS AUTHORITY
                                                   )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Timothy L. Hansen, District Judge.

       Order of the district court denying motion to dismiss, affirmed.

       Molly J. Huskey, State Appellate Public Defender; Justin M. Curtis, Deputy
       Appellate Public Defender, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Elizabeth A. Koeckeritz, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________
GRATTON, Judge
       Wade Collins appeals from his judgment of conviction for failure to register as a sex
offender. Idaho Code § 18-8309. We affirm.
                                                  I.
                      FACTUAL AND PROCEDURAL BACKGROUND
       Collins was charged in December 2008, by information, with one count of failure to
register as a sex offender. Specifically, Collins was charged, in Ada County, as being an
individual required to register as a sex offender who failed to provide the sheriff written notice of
a new address within two (2) days after he changed his address or actual residence. The State
later filed Part II to the information, asserting that Collins was a persistent violator. Collins filed


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a motion to dismiss contending that he was not required to register as a sex offender. Collins and
the State stipulated to the following facts:
       On September 18, 1987, Defendant was convicted in Washoe County, Nevada, of
       Battery with Intent to Commit Sexual Assault. Exhibit A. Defendant was
       sentenced to a term of incarceration in the Nevada State Prison for a period of six
       (6) years to be served consecutively with a state of Idaho prison term. Id.
       Defendant was in custody and transported to Idaho to begin serving his prison
       term on a probation violation in an Ada County case. Defendant was
       continuously incarcerated in Idaho until his release on January 20, 1994. At that
       time, he was returned to the state of Nevada to begin serving his prison term on
       the Washoe County conviction. Defendant was released from Nevada custody on
       a currently undetermined date in 1997. Thereafter, the defendant returned to the
       state of Idaho and registered as a sex offender for the first time on August 12,
       1997, in Kootenai County.

After the district court denied the motion, Collins entered into a conditional plea of guilty,
reserving his right to appeal the denial of his motion to dismiss. This appeal followed.
                                                    II.
                                               ANALYSIS
       Idaho Code § 18-8309(1) states, in relevant part: “If an offender changes address or
actual residence, the offender shall provide written notice of the new address within two (2)
working days after the change to the sheriff of the county where the offender is required to
register.” An “offender” is defined as “an individual convicted of an offense listed and described
in section 18-8304, Idaho Code, or a substantially similar offense under the laws of another state
. . . .” I.C. § 18-8303(8). Idaho Code § 18-8304(1)(a) lists the various Idaho crimes to which the
sex offender registration laws apply.          The sex offender registration requirements apply to
someone who “has been convicted of any crime, an attempt, a solicitation or a conspiracy to
commit a crime in another state . . . that is substantially equivalent to the offenses listed in
subsection (1)(a) of this section . . . .” I.C. § 18-8304(1)(c). The question in this case is whether
the Nevada crime for which Collins was convicted, battery with intent to commit sexual assault,
was substantially equivalent to Idaho crimes that require sex offender registration.
       Whether a foreign criminal violation is substantially equivalent is a question of law. We
exercise free review over questions of law and the application and construction of statutes. State
v. Moore, 148 Idaho 887, 897, 231 P.3d 532, 542 (Ct. App. 2010). In determining whether a
foreign state’s driving under the influence (DUI) statute and Idaho’s DUI statutes are in



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“substantial conformity,” we have compared the plain language of the statutes. Id. at 898, 231
P.3d at 543. The Idaho legislature has not defined “substantially equivalent” or “substantially
similar” under the sex offender registration laws.      However, like the phrase “substantially
conforming,” exact correspondence between the Idaho and the foreign statute is not required.
State v. Schmoll, 144 Idaho 800, 804, 172 P.3d 555, 559 (Ct. App. 2007).                The term
“substantially” has been determined to mean “[e]ssential; without material qualification . . . in
substance.” Id., citing BLACK’S LAW DICTIONARY 1428 (6th ed. 1990).
       Collins was convicted in Nevada of battery with intent to commit sexual assault. The
applicable Nevada statute defined battery as “any willful and unlawful use of force or violence
upon the person of another.” N.R.S. § 200.400 (1987). Idaho has the same definition of battery.
I.C. § 18-903. The Nevada sexual assault statute under which Collins was convicted stated:
       A person who subjects another person to sexual penetration, or who forces
       another to make a sexual penetration on himself or another, or on a beast, against
       the will of the victim or under conditions in which the perpetrator knows or
       should know that the victim is mentally or physically incapable of resisting or
       understanding the nature of his conduct, is guilty of sexual assault.

N.R.S. § 200.366(1) (1987). Collins was required to register in Idaho if the Nevada crime was
substantially similar to those listed in I.C. § 18-8304(1)(a). The district court held that Idaho’s
battery with intent to commit a serious felony, I.C. § 18-911, was substantially equivalent to
Collins’ Nevada conviction. Battery with intent to commit a serious felony in Idaho is among
those offenses listed in I.C. § 18-8304(1)(a).      Idaho Code § 18-911 reads:       “Any battery
committed with the intent to commit murder, rape, the infamous crime against nature, mayhem,
robbery or lewd and lascivious conduct with a minor child is a battery with the intent to commit
a serious felony.” In Idaho, a person convicted of this offense must register as a sex offender
unless the felony intended was murder, mayhem or robbery. I.C. § 18-8304(1)(a).
       Collins contends that sexual assault under the Nevada statute was not substantially
equivalent to Idaho’s statutes for rape, the infamous crime against nature, and lewd conduct with
a minor, referenced in I.C. § 18-911.      First, he asserts that Nevada’s definition of sexual
penetration may include rape of a person of either gender, whereas Idaho’s definition of rape,




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I.C. § 18-6101, only provides for male against female rape.1 Thus, he argues, Nevada’s statute is
broader than Idaho’s statute. Second, Collins claims that battery with intent to commit the
infamous crime against nature is not substantially equivalent to the Nevada statute. The Idaho
law provides that “Every person who is guilty of the infamous crime against nature, committed
with mankind or with any animal, is punishable by imprisonment in the state prison not less than
five years.” I.C. § 18-6605. Collins concludes that, since the statute provides no elements for
the crime, and we have said that we compare only the plain language of the statutes, it cannot be
said that the crimes are substantially equivalent.
       We have recently rejected Collins’ first argument in the context of comparing statutes for
“substantial conformity” under the DUI laws. We held that we were not required to imagine all
conceivable conduct that may be committed by a hypothetical defendant to compare what
conduct may or may not be criminalized under each statute. Moore, 148 Idaho at 898, 231 P.3d
at 543. Specifically, we rejected the contention that, to be “substantially conforming,” the
foreign state’s statute may never encompass conduct that would not be illegal in Idaho, i.e.,
broader than Idaho’s law. We noted that such a strict interpretation would run counter to the
legislature’s clear intent in using the term “substantially conforming,” as opposed to a dictate
that the statutes be exactly the same. Id. The same analysis applies here to the question of
“substantially equivalent” statutes.
       Idaho Code § 18-8304(1)(c) provides that the foreign conviction be “substantially
equivalent to the offenses listed in subsection 1(a) of this section . . . .” (emphasis added).
Consistent with our approach in Moore and Schmoll, exact matching of the elements is not
required. As we stated in Moore, the question is whether the statutes prohibit the “same essential
conduct.” Moore, 148 Idaho at 898, 231 P.3d at 543. We conclude that the Nevada and Idaho
statutes prohibit the same essential conduct and are substantially equivalent, though not
necessarily identical. Sexually based battery is encompassed in N.R.S. § 200.400 and § 200.366
as well as I.C. § 18-903 and § 18-911, which includes the sexual crimes of rape, I.C. § 18-6101,
the infamous crime against nature, I.C. § 18-6605 and § 18-6606, and lewd and lascivious
conduct with a minor child, I.C. § 18-1508. These statutes, considered together, prohibit sexual
conduct including penetration, use of force, overbearing a victim’s will, the victim’s incapacity

1
       Collins does not claim that the Nevada and Idaho statutes are materially different in
defining the acts which constitute rape.

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to resist, and sexual contact with children and animals. The essential elements of Nevada’s
sexual assault statute are encompassed within Idaho’s statutes.
                                               III.
                                        CONCLUSION
       Collins was convicted in Nevada of battery with intent to commit sexual assault. The
Nevada crime was substantially equivalent to offenses provided under Idaho’s battery with intent
to commit a serious felony statute. Thus, Collins was required to register under Idaho’s sex
offender registration statutes. The district court correctly denied Collins’ motion to dismiss.
Therefore, Collins’ judgment of conviction and sentence are affirmed.
       Judge GUTIERREZ and Judge MELANSON, CONCUR.




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