{1} Defendant appeals his conviction for breaking and entering in violation of NMSA 1978, Section 30-14-8 (1981). He contends the conviction should be reversed because: (1) the jury instruction describing the offense of breaking and entering was improper; (2) the trial court refused to give a jury instruction on a lesser-included offense; and (3) the trial court refused to instruct the jury on his defense theory that he had “permission” to enter the premises because he had an alleged tenancy interest in the apartment. Not persuaded, we affirm.
FACTS
{2} Defendant and Lori Reynolds had an “on-again, off-again” relationship for about three years before the incident leading to this conviction. They had one child together, and Reynolds had two other children. Sometimes Defendant provided child-care for Reynolds’ children while she was at work. Defendant and Reynolds maintained their own apartments. Reynolds testified that Defendant generally stayed the night at her apartment and at other times, she stayed at his apartment. Reynolds testified that Defendant generally did not keep any clothing or furniture at her apartment and she did not keep anything at his apartment. On the date of the incident, Defendant had a television and a pair of shoes at Reynolds’ apartment.
{3} On March 31, 1997, Defendant picked up the children from school and took them to Reynolds’ apartment while she was at work. He was cooking dinner for them when she returned home. Sometime during the evening, Reynolds received a telephone call from a man she had dated during a period when she and Defendant were not together. Defendant became angry and left the apartment. Reynolds, having seen his rages before, locked the door after him. Defendant returned shortly thereafter and banged on the door asking for his television and shoes. Reynolds refused to let him in. Defendant kicked open the door, breaking the locks and the casing of the door. He entered the apartment but left immediately when Reynolds informed him that she had called the police. Defendant was charged with breaking and entering.
DISCUSSION
{4} “Breaking and entering consists of the unauthorized entry of any ... dwelling or other structure ... where entry is ob-tamed
Instruction No. 3
For you to find the defendant guilty of Breaking and Entering, the State must prove to your satisfaction beyond a reasonable doubt each of the following elements of the crime:
1. The defendant entered the residence of Lori Reynolds 'without permission;
2. The entry was obtained by the breaking of a door;
3. This happened in New Mexico on or about the 31st day of March, 1997.
Defendant argues that the jury instruction does not properly instruct the jury on the elements of the crime. He argues that “entry without permission” is not the same as “unauthorized entry.”
{5} We note that Defendant did not object to the giving of the uniform jury instruction on breaking and entering. He points out, however, that he did argue his authority to be in the apartment as a defense to the charge. Thus, he contends, he was entitled to a proper instruction, even though he did not object to the instruction given.
{6} Defendant is correct that UJI 14-1410 does not track the language of Section 30-14-8(A) exactly. The statute uses the phrase “unauthorized entry,” while the instruction uses the phrase “without permission.” This variation from the strict language of the statute does not, by itself, make the instruction improper in a general sense or in this case. As our Supreme Court stated in State v. Maestas,
{7} Thus, while we agree that “permission” and “authorization” are not strictly synonymous, that does not necessarily mean that the jury instruction was improper here. We believe the concept of permission captures most conduct that would contravene the statute, including the fact pattern of this case. There might be cases in which different wording would be appropriate. But that is not the situation we review in this case.
{8} To answer Defendant’s contention, we must determine whether there was any disputed issue in this case about Defendant’s legal authority to be in the apartment that was not covered by use of the words “without permission” in the jury instruction. An unauthorized entry suggests an entry “without legal right or privilege or without permission of a person legally entitled to withhold the right.” Hambrick v. State,
{9} We disagree. Because the pertinent facts here are undisputed, whether Defendant had legal authority over the premises is a question of law. See Quantum Corp. v. State, Taxation & Revenue Dep’t,
{10} We find support for our position when we compare the situation in this case with the situations presented in eases from other jurisdictions, especially those examining whether one spouse may enter the dwelling of the other spouse absent permission. For example, in People v. Johnson,
{11} Similarly, in Parham v. State,
{12} The foregoing cases are illustrative of the overwhelming weight of authority from other jurisdictions. See, e.g., Cladd v. State,
{13} We recognize that in many of the preceding cases the defendants were accused of burglary and not breaking and entering, as in the instant case. However, we have no difficulty drawing on case law grounded in the common law of burglary as we think it
{14} We also recognize that the statutes at issue in many of the cases require (again drawing on the common law) that the breaking and entering be of the dwelling “of another,” while the New Mexico statute proscribes “unauthorized entry,” see section 30-14-8(A). But as the Indiana Court of Appeals aptly stated: “The Burglary statute’s requirement that the dwelling be that ‘of another person’ is satisfied if the evidence demonstrates that the entry was unauthorized.” Jewell v. State,
{15} Finally, we note that New Mexico case law construing our burglary statute has already recognized some of the principles we put forth above. In State v. Sanchez,
{16} Thus, we hold that the trial court’s failure to instruct the jury on an “unauthorized entry” rather than an “entry without permission” is not reversible error under the facts of this case. We specifically decline to discuss what facts are necessary to establish authority to enter a dwelling, as we believe that will vary on a case-by-case basis.
{17} Defendant also argues that the trial court erred in refusing to give his lesser-included offense instruction on criminal damage to property. We assume that under appropriate fact patterns, criminal damáge to property could be a lesser-included offense of breaking and entering. Cf. State v. Romero,
{18} Finally, Defendant argues that the trial court erred in refusing his tendered instructions regarding his claim that he was a tenant-at-will and, thus, had authority to enter the property. Of course a defendant is entitled to instructions on his theory of defense if there is evidence to support them. See State v. Castrillo,
CONCLUSION
{19} Having reviewed the undisputed evidence, we find, as a matter of law, that Defendant had no authority to enter Reynolds’ apartment. Thus, the trial court did not err in refusing to give Defendant’s requested instructions. Further, the failure to instruct the jury that it had to find an unauthorized entry was not reversible error as there was no issue presented regarding Defendant’s authority. Defendant’s conviction for breaking and entering is affirmed.
{20} IT IS SO ORDERED.