State v. Holt

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integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 11:48:18 2015.07.27

Certiorari Granted, June 19, 2015, No. 35,298

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2015-NMCA-073

Filing Date: April 27, 2015

Docket No. 33,090

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

ANTHONY HOLT,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Fernando Macias, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM
Jacqueline R. Medina, Assistant Attorney General
Albuquerque, NM

for Appellee

Jorge A. Alvarado, Chief Public Defender
Karl Erich Martell, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION

BUSTAMANTE, Judge.

{1} Anthony Holt (Defendant) was trying to remove a window screen from Carolyn
Stamper’s (Stamper) home when he noticed her through the window. Although he turned and
left the premises without breaching the window, he was convicted of one count of breaking

1
and entering and now appeals on two grounds. First, he argues that the Legislature did not
intend to punish as breaking and entering an intrusion into the space between the screen and
the window. Second, he maintains that the evidence was insufficient for the jury to conclude
that he in fact entered that space. We affirm.

BACKGROUND

{2} Stamper, a resident of Las Cruces, New Mexico, was relaxing on her sofa one
December afternoon when she heard the doorbell ring and a rustling sound at the front door.
She did not see anyone through the peephole in the door. She then heard a “metal on metal”
sound at the window, which was approximately seven feet from the front door. The window
was open approximately four inches because Stamper’s “smelly old dog” was in the room
with her. The curtains over the window were drawn except for a gap of about four inches.
Through the gap, Stamper could see a man at the window who was working to remove the
aluminum window screen. The screen was halfway removed from the window and the man
was trying to get the screen free of the track at the bottom of the window frame. At trial,
Stamper agreed with the State that while holding the screen, the man’s “fingers were . . . in
that area between the window and the screen[.]”

{3} After a few seconds, the man looked up and noticed Stamper. He said, “Oh, I’m
sorry,” then turned and left. As he was leaving, Stamper told him, “You better be sorry, you
thief[.]” Stamper testified that the screen “was pretty well destroyed” and had to be replaced.
She also testified that she was frightened by the incident and that it “was the first time [she]
had been confronted with this in [her] own home.”

{4} A jury convicted Defendant of one count of breaking and entering, contrary to
NMSA 1978, Section 30-14-8(A) (1981). Additional facts are provided as necessary to our
discussion.

DISCUSSION

{5} Defendant makes two arguments on appeal. First, he argues that the facts of this case
do not fit within a breaking and entering charge, because entering the space between a screen
and a window is not the same as entering the interior of a home or structure. Second, he
argues that the evidence was not sufficient to support a conclusion that Defendant entered
the space between the screen and window. We address these arguments in turn.

The Breaking and Entering Statute Encompasses Entry Into the Space Between the
Screen and Window

{6} Defendant argues that, even if his fingers were between the screen and the window,
he cannot be convicted of breaking and entering. Defendant makes two contentions: (1) the
plain language of the breaking and entering statute requires entry into the interior of a
structure, i.e., entry beyond the last barrier to the structure’s interior; and (2) the breaking

2
and entering statute is ambiguous because it does not define the boundaries of a structure,
and thus, under the rule of lenity, must be construed against the State. We interpret these
arguments as alternatives because the rule of lenity applies only if, after examination of the
plain language and other tools of statutory construction, the statute remains ambiguous. State
v. Hall, 2013-NMSC-001, ¶ 19, 294 P.3d 1235 (“A statute is ambiguous for the purpose of
the rule of lenity only if reasonable doubt persists about a statute’s intended scope even after
resort to the language and structure, legislative history, and motivating policies of the
statute.” (internal quotation marks and citation omitted)). After examining the statute’s
language and purpose, as well as cases interpreting it and similar statutes, we conclude that
Defendant’s conduct falls within that which the Legislature sought to punish. Based on our
construction of the statute, we conclude that it is not ambiguous such that the rule of lenity
applies. Id. Hence, we need not address Defendant’s second argument.

{7} Questions of statutory interpretation are reviewed de novo. State v. Smith, 2004-
NMSC-032, ¶ 8, 136 N.M. 372, 98 P.3d 1022. The goal of statutory interpretation is “to
ascertain and give effect to the intent of the Legislature.” Id. (internal quotation marks and
citation omitted). We begin by examining the “plain language” of the statute and, if that
language is clear and unambiguous, we refrain from further construction. State v. Johnson,
2001-NMSC-001, ¶ 6, 130 N.M. 6, 15 P.3d 1233. “The plain meaning rule, however, is only
a guideline for determining the legislative intent. It is the responsibility of th[e] Court to
search for and effectuate the purpose and object of the underlying statutes.” Id. Thus, “[t]he
plain meaning rule ‘must yield on occasion to an intention otherwise discerned in terms of
equity, legislative history, or other sources.’ ” Smith, 2004-NMSC-032, ¶ 9 (citation
omitted). Finally, “statutes relating to the same general topic should be interpreted in light
of each other[.]” State v. Parvilus, 2014-NMSC-028, ¶ 16, 332 P.3d 281. As discussed in
more detail below, we rely on the burglary statute, NMSA 1978, § 30-16-3 (1971), as an aid
in our interpretation because of its similarities with the breaking and entering statute.

{8} Section 30-14-8(A) defines “breaking and entering” as

the unauthorized entry of any . . . dwelling or other structure, movable or
immovable, where entry is obtained by fraud or deception, or by the breaking
or dismantling of any part of the . . . dwelling or other structure, or by the
breaking or dismantling of any device used to secure the . . . dwelling or
other structure.

{9} As it relates to the facts here, UJI 14-1410 NMRA requires the jury to find that (1)
“[t]he defendant entered [the structure] without permission” and (2) “[t]he entry was
obtained by” breaking or dismantling a part of the structure. Unlike in some other states’
statutes, neither the breaking and entering statute nor the burglary statute states what delimits
a structure. Compare § 30-14-8(A) and § 30-16-3 with Ariz. Rev. Stat. Ann. § 13-1501(3)
(2012) (defining “[e]ntry” as “the intrusion of any part of any instrument or any part of a
person’s body inside the external boundaries of a structure” (emphasis added)). Nor do they
state that entry into any part of a structure will suffice. Compare § 30-14-8(A) and § 30-16-3

3
with Tex. Penal Code Ann. § 30.02(a)(1) (West 2007) (prohibiting entry of a building “or
any portion of a building”). In State v. Office of Public Defender ex rel. Muqqddin, the
Supreme Court relied on the absence of such language in the burglary statute to reject the
idea that entry into a part of a structure is equivalent to entry into the structure itself, stating
that “the Legislature has given no indication that it intended [such equivalency].” 2012-
NMSC-029, ¶ 38, 285 P.3d 622. While the breaking and entering statute provides that a
breaking may be accomplished by “breaking or dismantling any part of the . . . dwelling or
other structure,” the phrase “any part of” pertains only to breaking or dismantling, not to the
protected spaces. Section 30-14-8(A); see Hale v. Basin Motor Co., 1990-NMSC-068, ¶ 9,
110 N.M. 314, 795 P.2d 1006 (“Relative and qualifying words, phrases, and clauses are to
be applied to the words or phrase immediately preceding, and are not to be construed as
extending to or including others more remote.” (alterations, internal quotation marks, and
citation omitted)). We conclude that the plain language of the breaking and entering statute
sheds little light on the Legislature’s intent as to the issue before us: whether the space
between a window screen and an open window is protected space under the statute.

{10} We next examine the purposes of the breaking and entering statute to determine
whether the conduct here falls within the harm the Legislature sought to prevent. Because
“New Mexico’s breaking-and-entering statute is itself grounded in common law burglary[,]”
cases interpreting the burglary statute inform our analysis. State v. Rubio, 1999-NMCA-018,
¶ 13, 126 N.M. 579, 973 P.2d 256; see UJI 14-1410, comm. cmt. (“New Mexico’s breaking
and entering statute is a type of statutory burglary.”). Like burglary, “the purpose of New
Mexico’s breaking-and-entering statute is . . . to protect possessory rights.” Rubio, 1999-
NMCA-018, ¶ 15; Muqqddin, 2012-NMSC-029, ¶ 40 (stating that burglary protects
possessory rights). Those possessory rights, however, “go beyond the mere right to physical
possession of an object” and include the right to exclude, privacy interests, and “security of
habitation.” Muqqddin, 2012-NMSC-029, ¶¶ 40-43. “It is the invasion of privacy and the
victim’s feeling of being personally violated that is the harm caused by the modern burglar,
and the evil that our society is attempting to deter through modern burglary statutes.” Id. ¶
42.

{11} “[I]n order for an area to be considered prohibited space under [the burglary statute],
it must have some sort of enclosure.” Id. ¶ 44 (citing State v. Foulenfont, 1995-NMCA-028,
¶¶ 10-11, 119 N.M. 788, 895 P.2d 1329). “[I]t is this enclosed space that the Legislature
intended to protect.” Id. The burglary statute defines prohibited space as “any vehicle,
watercraft, aircraft, dwelling or other structure, movable or immovable[.]” Section 30-16-3.
The breaking and entering statute includes the same list. Section 30-14-8(A). In both
statutes, the spaces in which possessory, privacy, and security interests are implicated are
delineated by an enclosure. See Muqqddin, 2012-NMSC-029, ¶ 44.

{12} Our question thus becomes whether a window screen forms an enclosure such that
penetration beyond the screen is sufficient for entry of a structure. “[I]n general, the roof,
walls, doors, and windows constitute parts of a building’s outer boundary, the penetration
of which is sufficient for entry.” People v. Valencia, 46 P.3d 920, 925 (Cal. 2002),

4
disapproved of by People v. Yarbrough, 281 P.3d 68 (Cal. 2012)1; see Muqqddin, 2012-
NMSC-029, ¶ 48 (stating that “[a] window, by its nature, creates an opening in an
enclosure.”). But other types of boundaries might also suffice because “[i]t is the nature of
the enclosure that creates [prohibited space].” Id. ¶ 45. “‘[T]he proper question is whether
the nature of a structure’s composition is such that a reasonable person would expect some
protection from unauthorized intrusions.’ ” Id. (quoting People v. Nible, 247 Cal. Rptr. 396,
399 (Ct. App. 1988), holding modified by Valencia, 46 P.3d at 924).

{13} Relying in part on this test, the Muqqddin Court concluded that “a vehicle’s gas tank
and wheel wells do not constitute protected space under [the burglary statute].” Id. ¶ 12. No
New Mexico court since Muqqddin has used this test to address the legal question here.
However, in Nible, the case from which the test was derived, the California Court of Appeals
stated that “the focus of the question whether the penetration of a [partially open] window
screen constitutes a burglarious entry must be on whether a reasonable person would believe
a window screen provides some protection against unauthorized intrusions.” 247 Cal. Rptr.
at 399. It found that the answer to this question “is unequivocally in the affirmative.” Id. It
went on to state that

the screen door [or window] is not to be considered as a mere protection
against flies, but rather as a permanent part of the dwelling. The holdings [in
case law] proceed, it would seem, on the grounds that the screen door [or
window] is a part of the house on which the occupants rely for protection and
that to open such a door [or window] is a violation of the security of the
dwelling house which is the peculiar gravamen of a burglarious breaking.

Id. (second, fourth, and fifth alterations in original) (internal quotation marks and citation
omitted). It concluded that “when a screen which forms the outer barrier of a protected
structure is penetrated, an entry has been made for purposes of the burglary statute.” Id. We
note that the Nible court found this analysis “especially apposite to the [facts in that] case,
where the window screen was affixed in a slot in the frame with no handle or other device
to facilitate its removal from the exterior of the apartment.” Id. Here, Stamper testified that
removal of the screen required use of a screwdriver or knife and that it was “not . . . a snap”
to remove. In addition, in Nible, like here, the window behind the screen was partially open
and the residence’s occupants were inside. See id. at 397.

{14} Similarly, in Valencia, the Supreme Court of California relied on a slightly different

1
In Yarbrough, the California Supreme Court “disapprove[d] as ill-considered
dictum” a statement in Valencia that an “unenclosed balcony” was not encompassed within
the “reasonable belief test.” Yarbrough, 281 P.3d at 71.

5
formulation of the test2 to conclude that “penetration into the area behind a window screen
amounts to an entry of a building within the meaning of the burglary statute even when the
window itself is closed and is not penetrated.” Valencia, 46 P.3d at 927. The Court stated:

[A] window screen is clearly part of the outer boundary of a building for
purposes of burglary. A reasonable person certainly would believe that a
window screen enclosed an area into which a member of the general public
could not pass without authorization. . . . [W]indow screens, which announce
that intrusion is unauthorized, do not limit their message to flies but extend
it to burglars as well.

Id.

{15} Other courts examining similar circumstances have reached similar conclusions. For
example, in Commonwealth v. Burke, the Massachusetts Supreme Court stated that “[it
could] find no support at common law for the view . . . that . . . an entry must be
accompanied by a removal of all remaining barriers (i.e., the inner window) for it to be
actionable” and held that “the more common view is that outer window coverings should be
treated as part of the dwelling itself, and any entry beyond them, no matter if further
impeded by additional window coverings, should be punished.” 467 N.E.2d 846, 849 (Mass.
1984). It concluded that, therefore, “[e]vidence that the defendant placed his hand between
the broken storm window and the inner window would be sufficient to warrant a finding of
an entry under [the Massachusetts burglary statute].” Id. The South Carolina Supreme Court
held in State v. Chappell that a screen covering a window “was more than a mere protection
against flies and mosquitoes; it was an enclosing part of the dwelling house” and that where
the defendant “tor[e] away” the corner of the screen and “inserted his hand through the hole
thus made and raised the window sash[, t]his was not only a breaking, but was an entry
sufficient in law to constitute burglary[.]” 193 S.E. 924, 925 (S.C. 1937)3; cf. State v.
Kindred, 307 P.3d 1038, 1040-41 (Ariz. Ct. App. 2013) (examining “whether the ‘external
boundar[y]’ of the structure, as that phrase is used in [Section 13-1501(3) of Arizona’s
burglary statute], is the exterior of the door, or whether a person or instrument must penetrate

2
Whereas the Nible court stated the test as “whether a reasonable person would
believe a window screen provides some protection against unauthorized intrusions[,]” 247
Cal. Rptr. at 399, the Valencia Court stated the test as “whether a reasonable person would
believe that the element of the building in question enclosed an area into which a member
of the general public could not pass without authorization.” 46 P.3d at 926.
3
The dissent argues that Chappell does not support our conclusion. But the facts in
that case are very similar to those here: the defendant tore a screen and reached through to
raise the window sash. Id. at 925. There is no indication in that case that any part of the
defendant’s body went through the window itself. Id. Thus, like here, the requisite entry was
accomplished by entering the space between the screen and (open) window.

6
past the door in order to enter the structure” and holding that “a person must penetrate
whatever forms a structure’s outer boundary—a door, window, or wall, for example—but
need not go further to have entered the structure.”)4; Barrick v. State, 119 N.E.2d 550, 553
(Ind. 1954) (stating that a “breaking” sufficient for burglary “includes the putting aside of
any material part of the building intended as a security against invasion, such as removing
a window screen” (emphasis added))5; State v. Gatewood, 221 P.2d 392, 396 (Kan. 1950)
(holding that there was an entry where the defendant had broken a screen door even though
he had not opened the wooden door behind it).6

{16} Defendant points to cases using the term “interior” in their analyses of “entry” to
support his contention that the breaking and entering statute requires some further
penetration into the structure than occurred here. For example, in State v. Sorrelhorse, this
Court stated that “the term ‘entry’ in the criminal code requires only the slightest penetration
of an interior space.” 2011-NMCA-095, ¶ 7, 150 N.M. 536, 263 P.3d 313. Similarly, in State
v. Reynolds, the Court noted that “[a]ny penetration, however slight, of the interior space is
sufficient [to constitute entry].” 1990-NMCA-122, ¶ 37, 111 N.M. 263, 804 P.2d 1082
(second alteration in original) (internal quotation marks and citation omitted). However,
neither of these cases was using the term to address the question presented here. Rather, both
Sorrelhorse and Reynolds were concerned with the extent to which the defendant penetrated
the prohibited space. See Sorrelhorse, 2011-NMCA-095, ¶¶ 6-8; Reynolds, 1990-NMCA-
122, ¶ 37.
{17} The question here, in contrast, has to do with what defines the prohibited space.

4
Although we agree with the dissent that Kindred is distinguishable because it relies
on Arizona’s burglary statute, which requires penetration of any “external boundary,” we
disagree that the Kindred court “found no other authority,” ¶ 40, for its conclusion that
“insertion of [a] pry bar into the door jamb constitutes entry as contemplated by” that statute.
Id. at 1041. Indeed, the court cited to five cases, including Burke, in support of its holding.
Id.
5
In Barrick, the court analyzed only whether the rattling of the doors constituted a
“breaking” sufficient for attempted burglary if such a crime existed in Indiana. Id. at 553 n.1.
It did not analyze whether an entry occurred. It is cited here for its recognition that a window
screen serves as “security against invasion.” Id.
6
As stated in the dissent, the facts in Gatewood included entry into an enclosed porch
attached to the house, which the court held was an entry sufficient for burglary. 221 P.2d
at 394. “The entrance door to the screen porch, however, was not the only ‘outer door’ the
appellant broke” in that case. Id. at 395. The part of the opinion we rely on has to do with
whether entry was accomplished where another screen door was “not only broken but a hook
which fastened the door was lifted and the screen door was opened” but the wooden door
behind it was not opened. Id. at 395-96. The court concluded that “[the defendant] did enter
his hand and an arm, at least partially, when he unsuccessfully attempted to unlock the inside
door with a key.” Id. Thus, this portion of Gatewood supports our conclusion.

7
“[T]he established rule [is] that cases are not authority for propositions not considered[.]”
Padilla v. State Farm Mut. Auto. Ins. Co., 2002-NMCA-001, ¶ 10, 131 N.M. 419, 38 P.3d
187 (internal quotation marks and citation omitted), aff’d but criticized by, 2003-NMSC-011,
133 N.M. 661, 68 P.3d 901. Thus, we decline to ascribe undue significance to use of the
word “interior” in those cases.

{18} Similarly, the dissent cites to out-of-state cases for the proposition that an “entry”
requires a crossing of a structure’s threshold. See ¶ 41. Several of these are directly on point.
For example, in State v. Pigques, 310 S.W.2d 942, 944 (Mo. 1958), the defendant “had
entered into the space between [some] outer wooden doors and [an] inner wire-mesh door.”
The court thus considered “whether his entry into that space would constitute an entry into
the building within the meaning of [Missouri’s burglary statute].” Id. Relying in part on the
principle that entry requires a breach of the last barrier to the interior of the structure, the
court held that the defendant had not completed a burglary but instead could be convicted
only of attempted burglary. Id. at 945-46. In State v. McCall, on which Pigques relied, the
Alabama Supreme Court considered whether there was an entry where the defendant
“wrested open the window shutters, and his hands protruded beyond the line made by the
shutters when shut, . . . notwithstanding the sash remained down and the glass was
unbroken.” 4 Ala. 643, 644 (1843) (internal quotation marks and citation omitted). The court
concluded that

[i]t cannot be, that the common security of the dwelling house is violated by
breaking one of the shutters of a door or window which has several. True, it
weakens the security which the mansion is supposed to afford, and renders
the breach more easy; but as additional force will be necessary before an
entry can be effected, there can, under such circumstances, be no burglary
committed.

Id. at 646. Thus, the court held that there was no burglary because “there was nothing but
a breach of the blinds, and no entry beyond the sash window [and t]he threshold of the
window had not been passed[.]” Id.

{19} Interestingly, another case relied on by the dissent takes a different approach. In
Miller v. State, the defendant had cut a hole in the roof of a store, climbed into the attic, and
cut a hole in the ceiling, but had not entered the interior of the store itself. 187 So. 2d 51, 52
(Fla. Dist. Ct. App. 1966). The defendant “contend[ed] that breaking of the roof and the
subsequent breaking of the ceiling [wa]s not enough to constitute entry.” Id. The court stated
that it “would be inclined to agree with [the defendant] if it were not for the fact that there
[wa]s evidence in the record that there was an airspace between the roof and the ceiling. .
. . [I]t is reasonable to conclude that it would be necessary for the [defendant] to intrude
himself, or some part of himself, into the hole that he had created in the roof in order to cut
a hole in the ceiling on the other side of the airspace.” Id. 52-53. Hence, in Miller, entry
beyond the last barrier into the store (the ceiling) was not required to effect an entry. In other
words, an entry into the space between the outer barrier and inner barrier was sufficient for

8
a breaking and entering charge. Id. at 53.

{20} We recognize that the Pigques and McCall courts came to a conclusion different
from ours and from the conclusions reached in Nible, Valencia, Burke, and Chappell. Faced
with two competing analyses, we must choose the path most consonant with the purpose of
our statute and Supreme Court precedent. We believe we have done so. Based on the test
stated in Muqqddin and the reasoning of our sister states’ courts, we conclude that a
reasonable person would expect the window screen here to afford some protection from
unauthorized intrusions. See Muqqddin, 2012-NMSC-029, ¶ 45. Consequently, we conclude
that if any part of Defendant entered the space between the screen and the window, he
“entered” the structure for purposes of the breaking and entering statute.

{21} To the extent that Defendant argues that our holding will produce absurd results
because “[t]his interpretation would convict of [b]reaking and [e]ntering any person who
opens a screen door to knock on the door itself[,]” we disagree because under the
“reasonable belief test” it would be unreasonable to believe that an unlocked screen door was
a barrier “a member of the general public could not pass without authorization.” Valencia,
46 P.3d at 926.

{22} In Muqqddin, the Supreme Court cautioned lower courts against “expand[ing] . . . the
reach of . . . statute[s] . . . without any parallel change in the statute.” 2012-NMSC-029, ¶¶
1, 49. Our conclusion does not do so. In Muqqddin, the gas tank and wheel well were not
enclosed spaces in which “things are stored and personal items can be kept private.” Id. ¶ 61.
In contrast, a home is a structure the Legislature clearly intended to protect. See id. ¶ 39
(stating that the common-law purpose of burglary—security of the home—still applies).
Unlike the unenclosed parts of vehicles in Muqqddin, the screen here was no less a
component of the home’s enclosure than the walls, windows, or doors. Contrary to the
dissent’s assertion, our analysis does not depend on the perimeter or “close” concept that
was rejected in Muqqddin. Id. ¶ 46. In rejecting that concept, the Muqqddin Court was
specifically rejecting the idea of an “imaginary plane created by some portion of a structure
that is by its nature open to the elements.” Id. Rather, our analysis is based on whether the
window screen—a real, non-imaginary device—provided protection against intrusion and
enclosed protected space. See id. ¶ 45. Because we conclude that it did, Defendant’s
placement of his hands behind the window screen was an intrusion into the structure’s
enclosure and infringed on Stamper’s possessory rights. Such conduct is associated with the
“feeling of violation and vulnerability” that the Legislature sought to prevent with the
breaking and entering statute. See id. ¶ 43.

There is Sufficient Evidence to Support the Jury’s Conclusion That Defendant
“Entered” the Structure

{23} We turn next to Defendant’s second argument that there was insufficient evidence
that Defendant intruded into the structure at all. “In reviewing the sufficiency of the
evidence, we must view the evidence in the light most favorable to the guilty verdict,

9
indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the
verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176. After
viewing the evidence in this light, we examine whether “any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Id. (internal quotation
marks and citation omitted).

{24} To convict Defendant, the jury had to find that (1) “the defendant entered [Stamper’s
residence] without permission; the least intrusion constitutes an entry;” and (2) “the entry
was obtained by the dismantling of a window screen[.]” See UJI 14-1410. As we have
discussed, because the window screen was part of the enclosure around the home, any
intrusion into the space between the screen and window constitutes an “entry” for purposes
of the breaking and entering statute. See Sorrelhorse, 2011-NMCA-095, ¶ 7 (“[T]he term
‘entry’ in the criminal code requires only the slightest penetration of an interior space.”).
Stamper testified that “[she] saw this man, and he had the screen halfway off the window,
and he had his hand on each side of the screen, and he was twisting it and turning it and
looking down. . . . He was trying to get the screen off.” She described Defendant’s fingers
as being “over the screen.” On redirect, she agreed with the State that Defendant’s fingers
“were then in that area between the window and the screen[.]” Viewed in the light most
favorable to the verdict, this testimony is sufficient to permit the jury to conclude that
Defendant had intruded into the protected space between the screen and window.

CONCLUSION

{25} For the foregoing reasons, we affirm.

{26} IT IS SO ORDERED.

____________________________________
MICHAEL D. BUSTAMANTE, Judge

I CONCUR:

____________________________________
JAMES J. WECHSLER, Judge

RODERICK T. KENNEDY, Judge (dissenting).

KENNEDY, Judge (dissenting).

{27} This Opinion unnecessarily expands the physical space into which “entry” must
occur for breaking and entering exactly as we have recently been warned against pursuing
by our Supreme Court. By defining “entry” through a solely judicial construction of the
space to which it applies, the Opinion needlessly creates new definition for crimes that are

10
already adequately defined. This Opinion for the first time establishes the outermost
perimeter of a structure’s space as what defines the scope of the word “entry” for breaking
and entering and, presumably, for burglary as well. [Op. ¶ 18]. The Opinion, correctly, in
my view, sees ambiguity in the central premise of “what delimits a structure.” [Op. ¶ 9] It
recognizes that the Arizona legislature has explicitly defined “entry” as an “intrusion . . .
inside the external boundaries of a structure or unit of real property” and that Texas’s statute
prohibits entry of a building “or any portion of a building.” Id. California accomplished
expanding an intrusion within the exterior plane of a building judicially, an accomplishment
the Majority now seeks to duplicate. I read Muqqddin as a restriction on what the Majority
seeks to accomplish in this case. Accordingly, I do not believe Muqqddin’s citation to
Valencia and Nible was intended to encourage our changing the use of the word “entry” by
expanding the boundary of space to be entered in a way they took pains to criticize.
Muqqddin, 2012-NMSC-029, ¶ 45. The Supreme Court undid our long-standing tendency
to expand the spaces covered by breaking and entering and burglary; embarking again here
on that path is unwise and unnecessary. With regard to Valencia and Nible, our Supreme
Court specifically stated no more than that “a burglary can be committed through an open
window[,]” that I see as protecting from a penetration of interior protected space, not the
outermost plane of structure. Muqqddin, 2012-NMSC-029, ¶ 48.

{28} Statutes are strictly construed against the state, and we are to resolve doubt about
their construction in favor of the rule of lenity. State v. Bybee, 1989-NMCA- 071, ¶ 12, 109
N.M. 44, 781 P.2d 316. Criminal statutes may not be made applicable beyond their intended
scope if the legislative proscription is plain. Id. “We are not to enlarge or amend [a] statute
by judicial fiat.” Id. ¶ 15. “The Legislature is free to define the prohibited space of burglary
to include any part of almost anything. But absent a clearer intent to do so, we should not
ourselves do that which the Legislature has declined to do. It is for the Legislature alone to
define statutory criminal acts, and when it does not do so clearly, the rule of lenity compels
judicial restraint.” Muqqddin, 2012-NMSC-029, ¶ 37. In Muqqddin, as here, the acts in that
case constituting the crime were “already punished under our statutes as other, lesser
crimes.” Id. ¶ 50 (holding that judicially expanding the legal definition of a crime to include
behavior already punished as other, lesser crimes transgresses legislative intent). We
recently took this conservative approach instructed by Muqqddin to heart, overruling the
holding in State v. Tower to hold that entry into a commercial establishment in violation of
a no trespass notice was not a predicate “entry” sufficient to fulfill the element of
commercial burglary. 2002-NMCA-109, ¶ 9, 133 N.M. 32, 59 P.3d 1264, overruled on other
grounds by State v. Archuleta, 2015-NMCA-___, ¶ 1, ___ P.3d ___ (No. 32,794, Oct. 27,
2014). We should be so restrained in this case.

Penetration of Mere Outer Perimeters as “Entry” Was Rejected in Muqqddin

{29} In Muqqddin, our Supreme Court reversed a tortured construction of “entry” by
pointing out that this Court, over a period of decades, had engaged in an “unprecedented .
. . expansion” of the reach of the burglary statute without there being corresponding
legislative changes. 2012-NMSC-029, ¶ 1. Our holding that “[a]ny penetration of a

11
vehicle’s perimeter is . . . a penetration of the vehicle itself,” id. ¶ 10 (internal quotation
marks and citation omitted), led in the next case to our holding that the “removal of a
vehicle’s wheels is sufficient to constitute burglary.” State v. Dominguez-Meraz, No.
30,832, mem. op. *1 (N.M. Ct. App. Sept. 15, 2010) (non-precedential). Relying on
previous cases later criticized and overruled by our Supreme Court for expanding the nature
of burglary,7 we again held that “ ‘entry’ in the criminal code requires only the slightest
penetration of an interior space.” Sorrelhorse, 2011-NMCA-095, ¶ 7.

{30} I disagree with the Majority’s assessment of Sorrelhorse as not “address[ing] the
question presented here” because it concerns “the extent to which the defendant penetrated
the prohibited space.” [Op. ¶ 16] Sorrelhorse specifically found “entry” into the “interior
space” from the defendant’s foot being forced inside the door of an apartment and then
forcing its occupants even farther back inside. Id. By holding “entry” to be into truly
interior space, Sorrelhorse represents the direction we should follow. Who can dispute that
the defendant “entered” the prohibited space by crossing the threshold of the apartment?
Reynolds was implicitly overruled by Muqqddin not on the extent of penetration, which was
a hand’s depth, but through questions about the validity of what constituted a prohibited
structure and because the Legislature did not define a vehicle by its parts. Muqqddin, 2012-
NMSC-029, ¶¶ 22, 37. For this reason, incorporating a boundary that resembles Texas’s
“any part thereof” should be avoided.

{31} The Supreme Court skeptically recognized that some states include parts of “almost
anything” in burglary statutes involving vehicles, but chose to “disagree with the notion that
any penetration of a vehicle’s perimeter constitutes a penetration of the vehicle itself.” Id.
¶ 46. Valencia and Nible, relied upon by the Majority in this case, mirror our previous
criticized cases when they “show [that] the requirement of entry is not difficult to satisfy;
the slightest penetration will suffice.”8 Magness v. Super. Ct., 278 P.3d 259, 263 (Cal. 2012)
(construing Valencia and Nible). Magness specifically operates under that boundary but, in
Valencia, the defendant damaged the window behind the screen in his attempt to open it.
The California Supreme Court in Magness made the “observation that no burglary would
have occurred in Valencia . . . had the defendant removed the window screen but not
penetrated into the area behind it[.] Magness, 278 P.3d at 265. Wrapping fingers around the
screen’s frame alone may not be sufficient penetration under Magness. On the issue of what

7
Reynolds, 1990-NMCA-122, ¶ 37 (noting that any penetration of the interior space,
however slight, is sufficient to constitute “entry” within the meaning of the burglary statute);
State v. Tixier, 1976-NMCA-054, ¶ 11, 89 N.M. 297, 551 P.2d 987 (holding that evidence
that an unidentified instrument penetrated one-half inch inside a building is enough to
effectuate an entry under the burglary statute).
8
In subsequent cases in California, even this has been expanded to support a
conviction in which a screen was cut from its frame without any further entry. People v.
Hedgecock, D065977, 2015 WL 570299, at **2-3 (Cal. Ct. App. 2015) (unreported case).

12
constitutes entry, Magness is construction of Valencia. “In sum, something that is outside
must go inside for an entry to occur.” Id. at 264. I am not convinced that Valencia’s and
Nible’s path is persuasive.

{32} The expansion of the nature of structures that could be burgled resulted in our
Court’s having “gone astray” from the intent of both the common law and statutory roots of
burglary according to our Supreme Court. We were thus criticized for creating a crime that
enhanced “any crime committed in any type of structure or vehicle, as opposed to . . .
punishment for a harmful entry.” Muqqddin, 2012-NMSC-029, ¶ 3. We might do well to
follow the Iowa Supreme Court, which restrained itself from enlarging the inclusion of
curtilage, including front stoops and driveways into the definition of “occupied structure”
because the legislature had not previously done so, stating: “We do not construe statutes so
as to render a part of it superfluous, but presume our legislature included every part of the
statute for a purpose and intended each part to be given effect.” State v. Pace, 602 N.W.2d
764, 771 (Iowa 1999). Iowa sets a better example for us than California. The facts should
fit the law. The law should not move to encompass the facts. From the progression through
our vehicular burglary cases, I conclude that “entry” is not penetration of a perimeter to the
slightest degree, and we should avoid expanding the protected area of a structure’s interior
in the absence of legislative direction.

The Fact That Defendant’s Conduct Is Adequately Proscribed By Other Statutes
Should Also Require Our Forebearance

{33} Muqqddin also cautions us against blurring the line between similar, but different,
offenses with such expansions. 2012-NMSC-029, ¶ 50. It pointed out that the act of
perforating a gas tank for its contents was more likely the misdemeanor of tampering with
a motor vehicle. Id. ¶ 51.

{34} Burglary traditionally entailed a home invasion, and the crime has evolved to “protect
occupants against the terror and violence that can occur as a result of such an entry.” Id. ¶
3. The privacy interest protected by burglary statutes is related to the terror of having an
intruder inside of one’s home, into which the entry is fully accomplished. This Opinion
recognizes this privacy interest and that Stamper’s reaction to Defendant’s actions is
squarely within these senses of invasion, terror, and concern for possible personal violence
that the burglary statute is designed to address. It is there the degree of “entry” falls short.
[Op. ¶¶ 3, 10]. Certainly, Defendant attempted an entry. But, the California Supreme Court
stated, more specifically, “[t]he laws are primarily designed, then, not to deter the trespass
and the intended crime, which are prohibited by other laws, so much as to forestall the
germination of a situation dangerous to personal safety.” Magness, 278 P.3d at 261 (internal
quotation marks and citation omitted). This case falls short of that standard. Breaking and
entering differs from burglary because it protects a lesser interest than burglary,
characterized by its inclusion in Article 14 of Chapter 30 of our statutes entitled “Trespass.”
Muqqddin counsels us to have a disinclination to expand a statute when others are adequate
to the purpose at hand. 2012-NMSC-029, ¶ 40 (distinguishing burglary as protecting rights

13
that exist beyond “other laws” intended to deter trespass and theft). Attempt is the taking
an act in furtherance of an intention to commit a crime. NMSA 1978, § 30-28-1 (1963).
Defendant did not complete the act of entry and, given his likely intent and location of his
crime, it is attempted burglary, not breaking and entering, that accounts for what the
Majority says protects a heightened interest against “invasion of privacy” and security to
justify their new boundary. [Op. ¶ 10]. If the Majority follows the conservative approach
given us by Muqqddin, then Defendant here should be criminally responsible for attempted
residential burglary or, perhaps, attempted breaking and entering, criminal trespass, and
criminal damage. The distinction is notable, and the existing criminal statutes are fully
adequate as written.

Defining New Ambiguous Structures Damages the Plain Meaning of “Entry”

{35} The Majority concedes that the “any part of” a structure language in the breaking and
entering statute applies to the “breaking” portion of the statute and not the “entry.” [Op. ¶
9]. The Opinion seems desirous of now extending “entry” to any penetration of “some sort
of enclosure.” [Op. ¶ 11]. To do so successfully requires steps not yet legislated: (1)
“structure” (protected space) must be further defined by its outermost perimeter; and (2)
entry must be found either as a breaking of a perimeter, however slight, without clear entry
of protected interior space, or an actual crossing of the threshold to be present inside of the
structure. In Muqqddin, our Supreme Court rejected judicial approach equating entry into
“any portion” of a structure with entry into the structure itself. 2012-NMSC-029, ¶ 38.
Thus, I urge that the Majority’s holding inappropriately expands the protected area to “any
portion” rather than the interior of the structure by its holding that breaking the outer
perimeter and, no more, constituted “entry.”

{36} Muqqddin also cautions us that the plain meaning rule applies to keep the word
“entry” free of expansion by expanding those things that might be entered, since the
Legislature’s existing statutes work without doing so, and judicial restraint forecloses our
meddling in such an instance. Id. ¶ 38. Our Supreme Court rejected law from other
jurisdictions, including Texas, that allow entry to be found when “the defendant crosses
some imaginary plane” and concluded that “the concept of an imaginary plane is ambiguous,
creating more questions than it answers and [is] subject to prosecutorial abuse.” Id. ¶¶ 46,
47. Our Supreme Court had no problem, however, finding that entry could be accomplished
“through an open window.” Id. ¶ 48. The Opinion in this case consequently begs more
questions than it answers. Muqqddin criticized including in “entry” the acts of passing a
hand over a flatbed truck to break the plane of its outer edge and stealing a shutter attached
to a house that required no entry, but was within the line between eaves and foundation to
therefore “break[] the close.” Id. ¶ 47. Here, the Opinion concludes that “the plain language
of the breaking and entering statute sheds little 1ight on the Legislature’s intent as to the
issue before us[.] . . . [W]hether the space between a window screen and an open window
is protected space” under the statute. [Op. ¶ 9]. State v. Kindred, based on Arizona’s statute
that includes the plane of a building’s outer perimeter, acknowledged that their statute
“differs in several ways from the common law[.]” 307 P.3d 1038, 1041 (Ariz. Ct. App.

14
2013). The Kindred Court also commented that it had found “no authority . . . expressly
discussing whether that threshold has any particular depth and . . . whether entry into the
threshold, without more, constitutes entry into the structure.” Id. The Arizona legislature
made the threshold a plane and required no further entry than crossing it.

{37} Our Legislature is as apt as any in Texas and Arizona to expand what our Supreme
Court counsels us should be left to them alone. In an example from Magness of how
parsing “entry” can beggar judicial interpretation, an intruder who approached and opened
an unlocked sliding glass door on a house’s patio would displace air inside, but unless a part
of him or something he carried “crossed the door’s threshold,” no burglary would occur. 278
P.3d at 264. He could be “charged with attempted burglary, but not with a completed
burglary.” Id. The case was silent about the effect if the door handle were within the outer
perimeter of the door frame, or a finger was inside the outer edge of the door, but not inside
the full width of the threshold. Such parsing is best not reserved by courts. 2012-NMSC-
029, ¶ 47. Because Defendant did not enter Stamper’s house, he is, depending on what
might be proven of his intent, guilty of no more than an attempt to commit either breaking
and entering or burglary, along with the other crimes he most certainly committed, involving
trespass or vandalism.

The Case Law Does Not Follow Valencia and Nible

{38} I also conclude that Muqqddin’s citation to Valencia and Nible was for, as it stated,
no more than pointing out that a structure’s composition relates to an expectation of privacy.
Nowhere did Muqqddin attempt to expand that space using these cases, and the remainder
of the Supreme Court’s discussion, I believe, favors my view. The Majority places reliance
on Valencia, in which the California Supreme Court concluded that, because a window
screen is part of the outer boundary of a building, the area behind the window screen is
inside the premises, and entry that is just barely inside the premises is sufficient.9 Valencia
has been cited only three times by other states—Colorado, Hawaii, and Nevada—none of
which utilize its holding expanding boundaries to outside perimeters. Colorado used
Valencia in People v. Gonyea,10 where the defendant reached through the broken window
to open a door. In Hawaii, where no statutory definition of “entry” existed, the Supreme
Court vacated a conviction for the lack of its definition in a jury instruction. Valencia was

9
Valencia itself frequently conflated breaking with entering in its review of
precedent. Many cases cited in Valencia, as supporting the view that penetration of a screen
without entering the window behind it are not particularly apposite, since the defendants in
Bowers, Gatewood, Jenkins, and Conners involved actual entry by the defendant of the
inside of the structure. Ortega and Woods relied on Texas’s “any portion” statute. Crease
was on point, while Mazer inferred intent from cutting a screen, but entry was not
mentioned.
10
195 P.3d 1171, 1174 (Colo. App. 2008).

15
mentioned only in the context of whether a stream of mace an angry father sprayed into a car
over the threshold of the car’s window constituted a felonious “entry.”11 In Nevada,
Valencia was mentioned by way of evaluating probable cause for a charge based on
circumstantial evidence. Jones v. State, 238 P.3d 827 (Nev. 2008). The older Nible case has
been mentioned in other states for other propositions than entry past the outermost perimeter.
In Colorado, mentioned above, and Ohio, where the boundary issue was mentioned, there
was actual insertion of the defendant’s arm through a window. State v. McIntosh, 549
N.E.2d 1191 (Ohio 1990). Burke, from Massachusetts, is squarely with Valencia. Other
cases are not nearly as supportive.

{39} Chappell, cited by the Majority, involved the defendant reaching through the screen
to raise the window inside. [Op. ¶ 15] Kindred depends on Arizona’s specific statute and
found no other authority for the boundary it supported. The Majority, citing two of the cases
footnoted in Valencia, is also unavailing. Barrick stated that the defendant rattling doors
was no entry, but that he would have been guilty of attempted burglary if Indiana had such
a statute. 119 N.E.2d at 553. Gatewood actually held that the defendant’s full entry into an
enclosed porch attached to the house and the space between the screen door and the inner
door were both a sufficient entry into the dwelling proper. 221 P.2d at 394.

{40} Many other states have not expanded boundaries outward. Iowa and Hawaii,
mentioned above, declined to undertake a judicial expansion of their statute. Most states
seem to depend on crossing a “threshold” to find entry. Charles E. Torcia, Wharton’s
Criminal Law § 322 (15th ed. 2014) (“There is an entry when any part of the defendant’s
person passes the line of the threshold.”). Many states have determined that passing the
“line of the threshold” with all or part of the body into the interior perimeter of the structure
is entry by the defendant. See State v. Liberty, 280 A.2d 805, 808 (Me. 1971) (requiring
“intrusion into the building of any part of the body”); Price v. Commonwealth, 112 S.W.
855, 855 (Ky. Ct. App. 1908) (holding that breaking without entry, however slight, is not
burglary); State v. Peterson, 881 P.2d 965, 969 (Utah Ct. App. 1994) (“A simple passage by
any part of the body over the door’s threshold can amount to entry[.]”). Intrusion into the
building is required in New Jersey, Missouri, Florida, Louisiana, Illinois, Alabama, and
North Carolina. See State v. O’Leary, 107 A.2d 13, 15 (N.J. Super. Ct. 1954); State v.
Pigques, 310 S.W.2d 942, 945 (Mo. 1958) (“Literally, ‘entry’ is the act of going into the
place after a breach has been effected[.]”); Miller v. State, 187 So. 2d 51, 53 (Fla. Dist. Ct.
App. 1966); State v. Conner, 2008-0473 (La. App. 4 Cir. 10/1/08); 996 So. 2d 564, 568
(holding that “entry” requires passing the line of the threshold and “intrud[ing], even
momentarily, into the structure”); People v. Davis, 279 N.E.2d 179, 181 (Ill. App. Ct. 1972)
(requiring “intru[sion] into the building”); State v. McCall, 4 Ala. 643 (Ala. 1843) (holding
that reaching through shutters but not the window within was not “entry”); State v. Watkins,
720 S.E.2d 844, 850 (N.C. Ct. App. 2012) (holding that no entry inside residence when only
instrument that broke window crossed threshold to be “inside the residence”).

11
State v. Faria, 60 P.3d 333, 340 (Haw. 2002).

16
CONCLUSION

{41} I conclude that Defendant’s actions did not sufficiently “enter” Stamper’s house for
purposes of breaking and entering. I believe that his conduct is adequately covered by other
statutes and that the cause of justice would not suffer if he were convicted of the proper
crime(s). Breaking and entering and attempted residential burglary are fourth-degree
felonies; the legislated punishment is the same for both.12 Attempted breaking and entering
together with criminal trespass and criminal damage to the screen would be an adequate
combination to accurately punish him. When facts fit snugly within existing statutes,
bending another statute to fit stretches the law’s reach past its legislative intent. Muqqddin,
2012-NMSC-029. ¶¶ 50-51.

{42} I would prefer that this Court decline to expand the extent of protected spaces. The
Majority concludes early on that the language of the statute does little to help us divine
legislative intent regarding whether the space between the screen and window is prohibited
space. [Op. ¶ 9]. The Opinion recognizes that our statute does not state that entry into “any
part of a structure will suffice.” [Id.] There is no “plain meaning” in our statute to define
the space protected from “entry” and that ambiguity requires our exercising the rule of lenity
to Defendant’s benefit in this case. Our previous attempts to expand the reach of protected
space have been criticized. Granted, California and Massachusetts in Valencia and Burke
have held in accord with where this Opinion takes us. Kindred is based upon the Arizona
statute already distinguished from ours, but bases the crime on intruding into a boundary, as
opposed to a structure, which I would regard as just the position we took in Rodriguez that
was rejected by our Supreme Court in Muqqddin. Other out of state cases cited by the
Majority are not so illuminating. I would prefer, in light of Muqqddin, to wait for it to come
from somewhere else.

{43} I therefore most respectfully dissent.

____________________________________
RODERICK T. KENNEDY, Judge

12
Section 30-14-8(B) (stating that breaking and entering is a fourth-degree felony);
§ 30-16-3(A) (stating that burglary of a dwelling is a third-degree felony); § 30-28-1(C)
(attempting to commit a third-degree felony is a fourth-degree felony).

17