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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 § 29-11A4(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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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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{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
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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