{1} Our opinion filed March 22, 2011, is hereby withdrawn, and this opinion is filed in its stead. We deny the State’s motion for rehearing.
{2} Defendant Randy Sorrelhorse appeals his convictions for breaking and entering and criminal damage to property. Defendant argues that (1) the evidence was insufficient to support his conviction for breaking and entering, and (2) his conviction for criminal damage to property violates his right to be free from double jeopardy. For the reasons that follow, we affirm Defendant’s conviction for breaking and entering, and we vacate his conviction for criminal damage to property.
BACKGROUND
{3} At trial, Jimmy Arrellano testified that he and his friend Christine Southworth were at his apartment when Defendant knocked on the door and asked for cigarettes. Arrellano told Defendant to leave and closed the door. Defendant returned several minutes later, and when Arrellano opened the door, Defendant told Arrellano that he would cut him with a knife. Arrellano then tried to close the door, and Defendant began kicking and banging on it, while Arrellano and South-worth both tried to hold the door closed.
{4} Arrellano testified that during this struggle, Defendant was able to get into his apartment a little way. He testifiеd that Defendant was able to push him back into the apartment about a foot. Southworth testified that, while Arrellano was trying to keep Defendant out, she called 911, and Defendant began to walk away. The 911 operator asked which direction Defendant was headed, and when Arrellano oрened the door to see, Defendant returned and began kicking the door again. Southworth also testified that during Defendant’s struggle with Arrellano over the door, Defendant was able to get his foot into the apartment and that he was stepping into the apartment. Based on these events, Defendаnt was convicted of breaking and entering, contrary to NMSA 1978, Section 30-14-8(A) (1981), and criminal damage to property, contrary to NMSA 1978, Section 30-15-1 (1963). Defendant timely appeals.
SUFFICIENCY OF THE EVIDENCE
{5} Defendant first argues that his conviction for breaking and entering was not supported by sufficient evidence. “In reviewing the sufficiency оf 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,
{6} In order to convict Defendant of breaking and entering, the State was required to present evidence beyond a reasonable doubt that (1) Defendant entered a dwelling house without permission, and (2) entry was obtained by breaking a door. See UJI 14-1410 NMRA; see also § 30-14-8(A). Defendant argues that the evidence was insufficient to establish that he entered the apartment. Defendant argues that, since Arrellano and Southworth testified that Arrellano was able to prevеnt Defendant from coming into the apartment, the essential element of entry cannot be established.
{7} Our case law interpreting the term “entry” in the criminal code requires only the slightest penetration of an interior space. See State v. Reynolds,
{8} In this case, there was evidence that Defendant’s foot entered the apartment. Additionally, the jury could reasonably infer that Defendant entered the apartment based on the testimоny that he pushed the people who were inside the apartment back further into the apartment. We also reject Defendant’s assertion that Arrellano’s testimony that he was able to stop Defendant from coming into the apartment necessarily means that no part of Defendant’s body ever penetrated the interior space of the apartment. Defendant’s conviction for breaking and entering was supported by sufficient evidence.
DOUBLE JEOPARDY
{9} We now address Defendant’s argument that he was improperly convicted for both breaking and entering and criminal damage to property in violation of his right to be free from double jeopardy. Defendant raises a “double-description” double jeopardy claim. See State v. Dombos,
{10} In addressing double-description claims, we employ the two-part test set forth by our Supreme Court in Swafford v. State,
{11} Applying these factors to the facts of this case, we conclude that Defendant’s conduct was unitary. There was little separation in time аnd no separation in space between Defendant’s initial act of trying to force open the door and his returning moments later to beat on the door again. Nor was there any significant change in the nature or objective of Defendant’s conduct. The conduct underlying both convictions was the same, and Defendant’s intent was to open the door to the apartment by physical force. See State v. Demongey,
{12} The State argues that Defendant’s act of walking away from the apartment and Arrellano’s sticking his head out of the apartment door constituted intervening events that rendered Defendant’s conduct non-unitary. However, we disagree that Defendant’s аct of momentarily walking away from the apartment door before returning to continue to bang on it is sufficient to render the conduct non-unitary. Cf State v. Cooper,
{13} “If the defendant’s conduct is unitary, we next determine whether the Legislature intended to create separately punishable offenses for the same conduct.” Demongey,
{14} “In applying the Blockburger test, this Court compares the elements of each crime with the elements of the other to determine whether the Legislature intended separate punishments under each statute.” State v. Lee,
{15} Breaking and entering can be committed a number of ways. Section 30-14-8(A) provides, in relevant part, that “[bjreaking and entering consists of the unauthorized entry of any ... dwelling ..., where entry is obtained by fraud or deception, оr by the breaking or dismantling of any part of the ... dwelling ..., or by the breaking or dismantling of any device used to secure the ... dwelling[.]” Through Section 30-14-8(A), the Legislature has provided alternative methods of committing the crime of breaking and entering a dwelling: by unlawfully entering a dwelling by fraud and deception or by unlawfully entering a dwеlling by breaking or dismantling any part of the dwelling or any device that secures the dwelling.
{16} When conducting a Blockburger analysis of a crime that may be charged in alternative ways, we look to the “legal theory” of the crime charged. State v. Franco,
{17} The jury was instructed that to convict Defendant of breaking and entering, it had to find beyond a reasonable doubt that (1) Defendant entered a dwelling house without permission, and (2) entry was obtained by the breaking of a dоor. The elements of criminal damage to property are “intentionally damaging any real or personal property of another without the consent of the owner of the property.” Section 30-15-1; see also UJI 14-1501 NMRA (requiring proof that the defendant intentionally damaged the property of another and that the defendant did not have the owner’s permission to damage the property).
{18} When we compare the two crimes, we conclude that breaking and entering requires proof of an entry, which is not an element of criminal damage to property, and criminal dаmage to property does not require proof of an element that is not contained in breaking and entering. The State argues otherwise, contending that criminal damage to property contains the essential element of intent to damage property, which it contends is not an еlement of breaking and entering. The State bases its argument on the common law meaning of the term “breaking,” which it asserts this Court must conclude the Legislature intended when it used the term in Section 30-14-8(A). To be sure, the common law is the backdrop for the Legislature’s
{19} At common law, the focus of the crimе of burglary was to protect the security of the home and those living within it. Min-turn T. Wright III, Note, Statutory Burglary — The Magic of Four Walls and a Roof, 100 U. Pa. L.Rev. 411, 427 (1951). Burglary consisted of breaking and entering a dwelling of another in the night time with the intent to commit a felony. Id. at 411. Although the breaking element required some aspect of forсe in order to distinguish it from the element of entering, actions such as opening a closed window or crawling down a chimney were considered breaking, and damage to property was not necessary. Id. at 412. As the crime of common law burglary evolved, an actual breaking was not required for сommon law burglary; a constructive breaking was sufficient. Id.; State v. Ortiz,
{20} To adopt the State’s position, we must construe Section 30-14-8(A) to adopt the meaning of the term “breaking” as used in common law burglary. As argued by the State, the term would then embrace the common law concepts of the “breaking of the planes” or “breaking the close.” See United States v. Eichman,
{21} Thus, looking at the elements of breaking and entering and criminal damage to property, the offense of criminal damage to property does not require proof of a separate element, and it was subsumed within breaking and entering. See Lee,
CONCLUSION
{22} We affirm Defendant’s conviction for breaking and entering and vacate his conviction for criminal damage to property. See Lee,
{23} IT IS SO ORDERED.