Lead Opinion
OPINION
{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 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 thieff.]” 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 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,
{7} Questions of statutory interpretation are reviewed de novo. State v. Smith,
{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 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].”
{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,
{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,
{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,
{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.”
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 formulation of the test
[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____[WJindow 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.”
{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.”
{17} The question here, in contrast, has to do with what defines the prohibited space. “[T]he established rule [is] that cases are not authority for propositions not considered[.]” Padilla v. State Farm Mut. Auto. Ins. Co.,
{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,
[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.
{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,
{21} To the extent that Defendant argues that our holding will produce absurd results because “[t]his interpretation would convict of [breaking and [ejntering 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,
{22} In Muqqddin, the Supreme Court cautioned lower courts against “expanding] . . . the reach of. . . statute[s] . . . without any parallel change in the statute.”
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, indulging all reasonable inferences and resolving all conflicts in the evidence in favor of the verdict.” State v. Cunningham,
{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,
CONCLUSION
{25} For the foregoing reasons, we affirm.
{26} IT IS SO ORDERED.
Notes
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,
Whereas the Nible court stated the test as “whether a reasonable person would believe a window screen provides some protection against unauthorized intrusions[,]”
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.
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.
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.l. 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.
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.
Dissenting Opinion
Judge (dissenting).
Dissenting Opinion
(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,
{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,
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.
{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,
{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.” M ¶ 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.”
{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,
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.
{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,
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.
{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 light on the Legislature’s intent as to the issue before us[.] . . . [WJhether 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[.]”
{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.
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.
{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.
{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,
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.
{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.
Reynolds,
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,
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.
State v. Faria,
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).