State v. HoltState v. Holt
Opinion Number: _______________
Filing Date: April 27, 2015
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 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
{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
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.
{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 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.
{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 state 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 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.
{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.
{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.
{14} Similarly, in Valencia, the Supreme Court of California relied on a slightly different 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 unаuthorized, do not limit their message to flies but extend it to burglars as well.
Id.
{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, 2011-NMCA-095, ¶ 7, 150 N.M. 536, 263 P.3d 313, this Court stated that “the term ‘entry’ in the criminal code requires only the slightest penetration of an interior space.” Similarly, in State v. Reynolds, 1990-NMCA-122, ¶ 37, 111 N.M. 263, 804 P.2d 1082, the Court noted that “[a]ny penetration, however slight, of the interior space is sufficient [to constitute entry].” (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.
{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, 4 Ala. 643, 644 (1843) (internal quotation marks and citation omitted), 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.”
[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 threshоld 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, 187 So. 2d 51, 52 (Fla. Dist. Ct. App. 1966), 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. 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 airspаce.” Id. 52-53. Hence, in Miller, entry beyond
{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.
{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, 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
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 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.
{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 dоes 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
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 оf the burglary statute without there being corresponding legislative changes. 2012-NMSC-029, ¶ 1. Our holding that “[a]ny penetration of a 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
{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 forсing 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
{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
The Fact That Defendant’s Cоnduct 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
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 thе “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”
{36} Muqqddin also cautions us that the plain meaning rule apрlies 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 wаs 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 light 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
{37} Our Legislature is as apt as any in Texas and Arizona to expand what our Supreme Court counsels us should be lеft 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
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, where the defendant reached through the broken window to open a door. In Hawaii, where no statutory definition оf “entry” existed, the Supreme Court
{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 Mаjority, 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.
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 justiсe 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
{43} I therefore most respectfully dissent.
_______________________________
RODERICK T. KENNEDY, Judge