This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.

Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum

opinions. Please also note that this electronic memorandum opinion may contain

computer-generated errors or other deviations from the official paper version filed by the Court of

Appeals and does not include the filing date. 

1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 STATE OF NEW MEXICO,

3 Plaintiff-Appellee,

4 v. NO. A-1-CA-37358

5 BRANDON RYAN,

6 Defendant-Appellant.

7 APPEAL FROM THE DISTRICT COURT OF CURRY COUNTY

8 Matthew E. Chandler, District Judge

9 Hector H. Balderas, Attorney General

10 Santa Fe, NM 

11 for Appellee

12 Bennett J. Baur, Chief Public Defender

13 Kathleen T. Baldridge, Assistant Appellate Defender

14 Santa Fe, NM 

15 for Appellant

16 MEMORANDUM OPINION

17 VANZI, Judge.
2

1 {1} Defendant appeals his conviction for breaking and entering. We issued a

2 calendar notice proposing to affirm. Defendant has responded with a memorandum

3 in opposition. We affirm.

4 {2} Defendant continues to challenge the sufficiency of the evidence to support his

5 conviction for breaking and entering. A sufficiency of the evidence review involves

6 a two-step process. State v. Apodaca, 1994-NMSC-121, ¶ 6, 118 N.M. 762, 887 P.2d

7 756. Initially, the evidence is viewed in the light most favorable to the verdict. Id.

8 Then the appellate court must make a legal determination of “whether the evidence

9 viewed in this manner could justify a finding by any rational trier of fact that each

10 element of the crime charged has been established beyond a reasonable doubt.” Id.

11 (internal quotation marks and citations omitted).

12 {3} In order to convict Defendant, the evidence had to show that Defendant entered

13 a residence without permission by cutting a window screen. [RP 119] Defendant does

14 not dispute that the State presented evidence that he cut into the window screen.

15 Instead, he argues that his conduct amounted to an insufficient “entry” and that the

16 State failed to present evidence that he acted without permission of the homeowner.

17 With respect to “entry,” our Supreme Court has recognized that this refers to “the least

18 intrusion into some interior space, that . . . simply refers to the area beyond the

19 boundary that a reasonable person would expect to afford them protection from

20 unauthorized intrusions.” State v. Holt, 2016-NMSC-011, ¶ 19, 368 P.3d 409; see also
3

1 UJI 14-1410 NMRA (stating that where entry is at issue, the court is to instruct the

2 jury that “the least intrusion constitutes an entry”). Here, Defendant penetrated this

3 boundary when he cut the screen with a knife. This was sufficient. See State v. Tixier,

4 1976-NMCA-054, ¶ 12, 89 N.M. 297, 551 P.2d 987 (holding that entry occurred

5 where there was a one-half inch penetration into a building). With respect to the

6 alleged lack of evidence that the entry was unauthorized, this evidence is implicit by

7 the nature of Defendant’s damage to property and the penetration of the protected

8 space. See Holt, 2016-NMSC-011, ¶ 17 (discussing reasonable expectation of privacy

9 underlying the definition of area that is protected from intrusion); State v. Carter,

10 1979-NMCA-117, ¶ 6, 93 N.M. 500, 601 P.2d 733 (observing that “circumstantial

11 evidence may be sufficient to prove an unauthorized entry”).

12 {4} For the reasons set forth above, we affirm.

13 {5} IT IS SO ORDERED.

14 __________________________________

15 LINDA M. VANZI, Judge

16 WE CONCUR:

17 _________________________________

18 J. MILES HANISEE, Judge
4

1 _________________________________

2 KRISTINA BOGARDUS, Judge