SANTA FE -- Does a convicted sex offender in California have to register with the government if he moves to New Mexico?
The New Mexico Court of Appeals said one such man did not, setting the stage for another courtroom confrontation this month.
Bruce D. Hall, about to turn 65 years old, is the defendant in the middle of this storm over laws and protection of children.
Hall is a marked man as a sex offender in California but so far not in New Mexico.
Court records show that Hall in 1999 was convicted in California of "annoying or molesting children," a misdemeanor. An assistant attorney general in New Mexico stated in a brief that Hall touched the genitals of three young boys.
Hall moved to Las Cruces, but did not register as a sex offender. This led to his indictment in 2008 for violating New Mexico's Sex Offender Registration and Notification Act.
Hall said that, despite his criminal record, he was not obligated to register as a sex offender. What he did in California was not a sex offense in New Mexico, he argued.
He said he could not be subjected to the registration law and asked that the charge against him be dismissed.
District Judge Douglas Driggers of Do a Ana County rejected Hall's motion. Hall entered a conditional guilty plea, but preserved his right to appeal.
He did and last year he won his case before the state Court of Appeals. A three-member panel of judges found that California and New Mexico had similar laws on sex crimes, but still said
Hall was absolved from being listed as a sex offender in New Mexico."... The fact that both statutes may serve similar purposes is in no way controlling," Chief Judge Celia Foy Castillo wrote in the decision. "Because the statutes differ on the essential element of touching or application of force, we hold that they are not equivalent under the Sex Offender Registration and Notification Act.
"And the defendant is not required to register as a sex offender in New Mexico based on his California conviction for annoying or molesting a child."
The court also reversed Hall's felony conviction for failing to register.
State Attorney General Gary King has appealed the ruling. One of his assistants, Margaret McLean, writing a brief on behalf of the state, said the appeals court's decision in Hall's case could have wide and damaging consequences.
"The possibility that a safe haven for sex offenders in New Mexico is adopted cannot be overstated," she said.
King has asked the New Mexico Supreme Court to overturn the ruling and require Hall to register as a sex offender. Oral arguments before the Supreme Court will be occur March 26.
Hall is being represented by a public defender, who said in his brief that the appeals court ruled correctly.
In sum, Hall's lawyer argued that New Mexico has no statute against "annoying or molesting a child," so he cannot be a sex offender in this state.
But McLean said New Mexico has a comparable law to California's, giving it a ready means of prosecuting men who molest boys.
In her brief, she even offered this hypothetical example: A man at the New Mexico State Fair quickly pulls down the pants of three boys and touches their genitals. McLean said New Mexico would prosecute such a predator for "criminal sexual contact of a minor."
As for the particulars of the states' two statutes, they need not be exact matches to justify Hall having to register as a sex offender, she said.
"Elements of the crime are different. This difference is not fatal" to New Mexico's sex registration law, McLean wrote in the brief.
Sen. Mary Jane Garcia, one of the state Legislature's leaders in writing laws to protect children, said she was alarmed at the appeals court's decision.
"I am going to be watching this case as it moves ahead. I don't want New Mexico being seen as a haven for those who prey on children," Garcia said.
She said Megan's Law, built from a California case, was a basis for certain New Mexico statutes approved in the 1990s to protect children from sexual predators.
Indeed, the California attorney general's website that lists sex offenders is called Megan's Law.
Hall is still listed as a sex offender on the California site. But beside his photograph is a red check mark.
He has been in violation of his California registration requirements since March 29, 2006, according to the California attorney general. That coincides with the time he moved to New Mexico.
Hall is not listed on New Mexico's website of sex offenders. The New Mexico Supreme Court will decide whether Hall belongs there.
If the Suprme Court finds that Hall does not fit the definition of a sex offender, Garcia and other legislators may take up the job of rewriting state laws.
Santa Fe bureau chief Milan Simonich can be reached at msimonich@tnmnp.com or (505) 820-6898. His blog is at nmcapitolreport.com.
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