State v. SORRELHORSE, 150 N.M. 536

Sorrelhorse was convicted of breaking and entering and criminal damage to property after attempting to gain entry to Arrellano's apartment and kicking the door; 911 was called during the struggle; testimony indicated the door was pushed and Defendant's foot entered the interior; the State argued entry was accomplished by breaking the door, while defense argued no entry occurred; on appeal, the court addressed sufficiency of the entry element and double jeopardy concerns.
The trial established that Arrellano and Southworth were inside when Defendant returned, threatened with a knife, and forced entry attempts occurred by force as the door was kicked and members inside were pushed.
The jury was instructed that breaking and entering required unlawful entry and entry obtained by breaking the door; the criminal damage charge required intentional damage to property without owner’s permission.
The court applied a de novo review to double jeopardy claims under a two-part Swafford framework, determining whether the conduct was unitary and then whether separate punishments were intended; it concluded the offenses were unitary but that criminal damage to property was subsumed within breaking and entering, violating double jeopardy.
The opinion ultimately affirms the breaking and entering conviction but vacates the criminal damage to property conviction, ordering dismissal of the lesser offense.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was there sufficient entry to convict breaking and entering?	State contends there was entry by force into the interior.	Sorrelhorse argues no interior entry occurred.	Yes; sufficient evidence showed entry into the apartment.
Does dual conviction for breaking and entering and criminal damage to property violate double jeopardy?	State argues separate offenses based on different elements.	Sorrelhorse argues offenses are distinct.	Convictions were unitary; criminal damage to property subsumed; vacate the lesser offense.

State v. Reynolds, 111 N.M. 263, 804 P.2d 1082 (Ct.App.1990) (entry requires slightest penetration into interior)
State v. Tixier, 89 N.M. 297, 551 P.2d 987 (Ct.App.1976) (entry by penetrating interior space suffices)
State v. Muqqddin, 148 N.M. 845, 242 P.3d 412 (2010-NMCA-069) (entry under burglary statute can be based on penetration of a part of property)
State v. Demongey, 144 N.M. 333, 187 P.3d 679 (2008-NMCA-066) (unitary conduct analysis for multiple punishments)
State v. Mares, 112 N.M. 193, 812 P.2d 1341 (Ct.App.1991) (multiple contacts during one rampage can be unitary)
State v. Lee, 146 N.M. 605, 213 P.3d 509 (2009-NMCA-075) (Blockburger applied to determine separate punishment)
State v. Franco, 137 N.M. 447, 112 P.3d 1104 (2005-NMSC-013) (elements-focused Blockburger when statute has alternatives)
State v. Caldwell, 143 N.M. 792, 182 P.3d 775 (2008-NMCA-049) (statutory intent governs double jeopardy when alternatives exist)
State v. Armendariz, 140 N.M. 182, 141 P.3d 526 (2006-NMSC-036) (statutory intent and Blockburger guide double jeopardy analysis)
State v. Bernal, 140 N.M. 644, 146 P.3d 289 (2006-NMSC-050) (de novo review of double jeopardy issues)
Swafford v. State, 112 N.M. 3, 810 P.2d 1223 (1991) (two-part test for double-descriptions)