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IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2016-NMSC-011

Filing Date: February 25, 2016

Docket No. S-1-SC-35298

STATE OF NEW MEXICO,

Plaintiff-Respondent,

v.

ANTHONY HOLT,

Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI

Fernando R. Macias, District Judge

Robert E. Tangora, L.L.C.

Robert E. Tangora

Santa Fe, NM 

for Petitioner

Hector H. Balderas, Attorney General

Jacqueline R. Medina, Assistant Attorney General

Santa Fe, NM

for Respondent

OPINION

NAKAMURA, Justice.

{1} Anthony Holt had partially removed a window screen from a residential dwelling

when he was detected by the homeowner and fled. In the process of removing the screen, he

placed his fingers behind the screen and inside the outer boundary of the home. Holt was

subsequently arrested and charged with breaking and entering, in violation of NMSA 1978,

Section 30-14-8 (1981). An “unauthorized entry” is an essential element of this offense.

Section 30-14-8(A). We must decide whether Holt’s conduct constitutes an “entry.” It does.

Accordingly, we affirm Holt’s conviction. While we affirm the judgment of the Court of
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Appeals, we issue this opinion to clarify the appropriate analysis for resolution of the issue

presented.

I. BACKGROUND

{2} We view the evidence presented in the light most favorable to the verdict. State v.

Treadway, 2006-NMSC-008, ¶ 7, 139 N.M. 167, 130 P.3d 746. So viewed, on the afternoon

of December 19, 2010, Carolyn Stamper was home alone when she heard the doorbell ring.

She was not expecting company. Shortly after the unanticipated ring, she heard some

“wrestling at the front door.” She moved slowly towards the door and peeped through the

peephole in the front door. She saw no one.

{3} Stamper then heard a noise emanating from the living-room window which was about

seven feet away from her position. The sound was like “metal on metal” or a cat “clawing

at the screen.” She walked towards the window. The curtain was closed, but not completely;

there was a gap about four inches wide. The window was open, raised from the bottom, also

about four inches. Between the curtains, Stamper observed a man, later identified as Holt,

removing the screen from her window. Stamper testified that Holt

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

looking down at the bottom part of the screen. He was trying to get the screen

off. It wasn’t completely off, but it was bent out away from the house and he

was working the screen like this.

Upon further questioning, Stamper clarified that Holt’s fingers were over the screen and the

palms of his hands were at its edges. He had pulled the screen out of its track “and bent it

about maybe half way down.” It was crooked at the top where Holt had “worked” it, but it

was still in the groove at the bottom. As a result of Holt’s conduct, the screen was “pretty

well destroyed.”

{4} Because Holt’s attention was focused downward, he did not initially see Stamper. At

some point, however, he looked up and saw her. Their faces were only about two and a half

feet apart. When Holt saw Stamper watching him, his “eyes bugged out.” He said “Oh, I’m

sorry,” and then promptly fled.

{5} Holt was arrested and charged by an amended indictment with breaking and entering.

At trial, after the State rested, Holt moved for a directed verdict. He argued that no entry had

occurred because he was interrupted by Stamper and “never did get inside.” The district

court denied the motion, finding that the State had presented sufficient evidence to proceed.

Holt presented no evidence.

{6} The jury found Holt guilty of breaking and entering. He was sentenced to five years

and six months—eighteen months for the breaking-and-entering violation and a four-year
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habitual-offender enhancement—followed by one year of parole.

{7} Holt appealed to this Court. He argued that the district court incorrectly construed

the term “entry” in Section 30-14-8(A) and claimed that the evidence was insufficient to

sustain his conviction because he had attempted only to remove the window screen and had

not entered Stamper’s residence. The Court of Appeals affirmed Holt’s conviction in a

divided opinion. State v. Holt, 2015-NMCA-073, 352 P.3d 702, cert. granted, 2015-

NMCERT-____ (No. 35,298, June 19, 2015). We granted Holt’s petition for a writ of

certiorari—exercising our jurisdiction under Article VI, Section 3 of the New Mexico

Constitution and NMSA 1978, Section 34–5–14(B) (1972)—to decide whether Holt entered

Stamper’s residence, for purposes of New Mexico’s breaking and entering statute, by placing

his fingers behind a window screen and beyond the outer boundary of Stamper’s home.

II. DISCUSSION

{8} Holt contends that only penetration of an interior protected space, not the outermost

plane of a structure, constitutes an “entry” for purposes of the breaking-and-entering statute.

The space between a screen and window, he argues, is not interior space. Thus, he claims

that his conduct did not constitute an “entry” for purposes of Section 30-14-8(A). Based on

his interpretation of the statute, Holt argues that there was insufficient evidence presented

to support the conviction. The State responds that the Legislature did indeed intend

penetration of a window screen to constitute an “entry” under Section 30-14-8(A) because

a window screen forms the outer barrier of a structure and people reasonably rely on window

screens to protect their possessory rights. Accordingly, the State contends that the evidence

was sufficient to support the conviction.

A. Standard of Review

{9} Whether Holt’s conduct constituted an “entry” for purposes of Section 30-14-8(A)

is a question of statutory construction this Court reviews de novo. State v. Nick R., 2009-

NMSC-050, ¶ 11, 147 N.M. 182, 218 P.3d 868 (citation omitted).

B. Definition of “entry” in Section 30-14-8(A)

{10} The primary goal in construing a statute is to “ascertain and give effect to the intent

of the Legislature.” State v. Tafoya, 2010-NMSC-019, ¶ 10, 148 N.M. 391, 237 P.3d 693

(internal quotation marks and citation omitted).

{11} Section 30-14-8(A) provides as follows:

Breaking and entering consists of the unauthorized entry of any vehicle,

watercraft, aircraft, 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 vehicle, watercraft, aircraft, dwelling or other
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structure, or by the breaking or dismantling of any device used to secure the

vehicle, watercraft, aircraft, dwelling or other structure.

{12} It is well-settled that words in a statute take their ordinary meaning absent legislative

intent to the contrary. State ex rel. Maloney v. Sierra, 1970-NMSC-144, ¶ 42, 82 N.M. 125,

477 P.2d 301. The term “entry” is not defined in Section 30-14-8. The first question we must

decide, then, is whether the ordinary meaning of “entry” resolves the statutory interpretation

question before us. As described below, ascribing the term “entry” its ordinary meaning does

not dispose of this case.

{13} According to one commonly used dictionary, “entry” is “[t]he action of coming or

going in.” V The Oxford English Dictionary 308 (2d ed. 1991). Another dictionary defines

“entry” as “[t]he act or an instance of entering.” The American Heritage Dictionary of the

English Language 596 (5th ed. 2011). A leading legal dictionary defines “entry” as “[t]he

act, right, or privilege of entering real property.” Entry, Black’s Law Dictionary (10th ed.

2014). All of these definitions give rise to additional and redundant definitional questions:

if “entry” is going “in,” what is “in”? To state that “entry” is “entering” is no help at all.

Additionally, how does one define the boundaries of the space entered? Assuming we can

discern what entering is, and “entry” is entering real property, where does the real property

begin or end?

{14} We cannot rely on the ordinary usage of the term “entry” to resolve the instant issue

of statutory interpretation. The majority opinion of the Court of Appeals appears to have

understood this and appropriately concluded that it was necessary to look to the purpose of

the breaking-and-entering statute to fashion a functional definition of the term “entry.” Holt,

2015-NMCA-073, ¶ 9. The majority opinion framed the issue as “whether the space between

a window screen and an open window is protected space under the statute.” Id. This framing

of the issue is problematic. It suggests that the space between the screen and the window is

a separate and independent dimension of space apart from the further interior space that

comprises Stamper’s residence. The issue is more straightforward: did Holt’s conduct

constitute entry into Stamper’s residence? To resolve this question we must determine where

the boundaries of the home begin and end, and the purposes underlying the breaking-andentering statute are our guide. See State v. Rivera, 2004-NMSC-001, ¶ 12, 134 N.M. 768,

82 P.3d 939 (“Application of the plain meaning rule often does not end the analysis when

construing a statute. Rather, the rule is a tool used by courts during the course of seeking and

effectuating the legislative intent underlying the statute.” (citation omitted)); State ex rel.

Helman v. Gallegos, 1994-NMSC-023, ¶ 23, 117 N.M. 346, 871 P.2d 1352 (“[Where] one

or more provisions giv[e] rise to genuine uncertainty as to what the legislature was trying

to accomplish . . . it is part of the essence of judicial responsibility to search for and

effectuate the legislative intent—the purpose or object—underlying the statute.”).

{15} “New Mexico’s breaking-and-entering statute is itself grounded in common law

burglary.” State v. Rubio, 1999-NMCA-018, ¶ 13, 126 N.M. 579, 973 P.2d 256 (“‘New

Mexico’s breaking and entering statute is a type of statutory burglary.’” (quoting UJI 14-
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1410 NMRA committee commentary)). As such, we look to our treatment of the burglary

statute to discern the purposes behind the enactment of the breaking-and-entering statute.

{16} Our burglary statute protects the “right to exclude,” a right that “has been described

as perhaps the most fundamental of all property interests.” State v. Office of Pub. Def. ex rel.

Muqqddin, 2012-NMSC-029, ¶ 41, 285 P.3d 622 (internal quotation marks and citation

omitted). The right to exclude “implies some notion of a privacy interest.” Id. ¶ 42 (citation

omitted). “It is the invasion of privacy and the victim’s feeling of being personally violated

that is the harm caused by the modern burglar, and the evil that our society is attempting to

deter through modern burglary statutes.” Id. (citation omitted). “The privacy interest that our

modern burglary statute protects is related to, though broader than, the security of

habitation.” Id. ¶ 43. That privacy interest extends to all enclosed, private, prohibited spaces.

See id. ¶¶ 44-45. Thus, an “entry,” for purposes of the breaking-and-entering statute, occurs

whenever there is an invasion into an enclosed, private, prohibited space. See Section 30-14-

8(A). But still we must ask how do we define the boundaries of these spaces.

{17} As we explained in Muqqddin, “[i]t is the nature of the enclosure that creates the

expectation of privacy. Enclosure puts the public on notice.” 2012-NMSC-029, ¶ 45. To

define the boundaries of enclosures, we embraced the following test: “‘[t]he proper question

is whether the nature of a structure’s composition is such that a reasonable person would

expect some protection from unauthorized intrusions.’” Id. (alteration in original) (quoting

People v. Nible, 247 Cal. Rptr. 396, 399 (Ct. App. 1988), holding modified by People v.

Valencia, 46 P.3d 920, 924-27 (Cal. 2002)).

{18} Based on the foregoing, we determine that putting one’s fingers behind a window

screen affixed to a residential dwelling is an intrusion into an enclosed, private, prohibited

space and constitutes an “entry” for the purposes of New Mexico’s breaking-and-entering

statute. Section 30-14-8(A). It is reasonable for the citizens of New Mexico to expect that

their window screens afford them protection from unauthorized intrusions. As the Nible

Court explained, a window screen “is not to be considered as a mere protection against flies,

but rather as a permanent part of the dwelling,” and, as such, “a reasonable person would

believe a window screen provides some protection against unauthorized intrusions.” 247 Cal.

Rptr. at 399 (internal quotation marks and citation omitted).

{19} The law has long been settled in New Mexico that “entry,” for purposes of the

burglary statute, occurs where there is “[a]ny penetration, however slight, of the interior

space . . . .” State v. Tixier, 1976-NMCA-054, ¶ 12, 89 N.M. 297, 551 P.2d 987. In Tixier,

the Court of Appeals held that a one-half inch penetration into a building by an unidentified

instrument was sufficient to constitute an entry. See id. In State v. Sorrelhorse, 2011-NMCA095, ¶¶ 4, 8, 150 N.M. 536, 263 P.3d 313, the defendant forcibly entered an apartment;

however, the entry consisted of nothing more than the defendant’s foot going in “a little

way.” As noted, our breaking-and-entering statute is intertwined with our burglary statute.

The Uniform Jury Instruction for breaking and entering directs that, where “entry is in

issue,” the court is to instruct the jury that “the least intrusion constitutes an entry.” UJI 14-
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1410 & n.2. To the extent Sorrelhorse and Tixier suggest that the least intrusion must be into

some “interior space,” that space simply refers to the area beyond the boundary that a

reasonable person would expect to afford them protection from unauthorized intrusions. See

Sorrelhorse, 2011-NMCA-095, ¶ 7; Tixier, 1976-NMCA-054, ¶ 12; cf. Nible, 247 Cal. Rptr.

at 399 (“[W]hen a screen which forms the outer barrier of a protected structure is penetrated,

an entry has been made for purposes of the burglary statute.”).

C. Sufficiency of the Evidence

{20} “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 (citations omitted). In that light, the Court determines

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). “[T]he [j]ury

instructions become the law of the case against which the sufficiency of the evidence is to

be measured.” State v. Arrendondo, 2012-NMSC-013, ¶ 18, 278 P.3d 517 (second alteration

in original) (internal quotation marks and citation omitted).

{21} To convict Holt of the breaking-and-entering charge, the jury was instructed that it

had to find beyond a reasonable doubt that “1. The defendant entered [Stamper’s address]

without permission; the least intrusion constitutes an entry; 2. The entry was obtained by the

dismantling of a window screen; 3. This happened in New Mexico on or about the 19th day

of December, 2010.”

{22} The only element for which Holt contends there was insufficient evidence is the entry

instruction. Stamper testified that she was two and a half feet from Holt when she saw him

removing the screen from her window. She testified that Holt’s fingers were over the screen,

i.e., beyond the boundary created by the window screen. Holt concedes that Stamper so

testified. Therefore, the evidence was sufficient to support the conviction.

III. CONCLUSION

{23} Holt placed his fingers behind Stamper’s window screen. The screen marked the

outer boundary of Stamper’s home. Thus, Holt entered Stamper’s residence for purposes of

Section 30-14-8(A). Accordingly, we affirm.

{24} IT IS SO ORDERED.

____________________________________

JUDITH K. NAKAMURA, Justice

WE CONCUR:

____________________________________
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BARBARA J. VIGIL, Chief Justice

____________________________________

PETRA JIMENEZ MAES, Justice

____________________________________

EDWARD L. CHÁVEZ, Justice

____________________________________

CHARLES W. DANIELS, Justice