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Certiorari Denied, August 29, 2011, No. 33,142

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMCA-095

Filing Date: July 5, 2011 

Docket No. 29,894

STATE OF NEW MEXICO,

Plaintiff-Appellee,

v.

RANDY SORRELHORSE,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY

John A. Dean, Jr., District Judge

Gary K. King, Attorney General

Margaret E. McLean, Assistant Attorney General

Joel Jacobsen, Assistant Attorney General

Santa Fe, NM

for Appellee

McGarry Law Office

Kathleen McGarry

Glorieta, NM

for Appellant

OPINION

WECHSLER, Judge.

{1} Our opinion filed March 22, 2011, is hereby withdrawn, and this opinion is 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
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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 Arellano 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 Southworth 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 testified 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 opened 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, Defendant

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 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. “The reviewing court

does not weigh the evidence or substitute its judgment for that of the fact finder as long as

there is sufficient evidence to support the verdict.” State v. Mora, 1997-NMSC-060, ¶ 27,

124 N.M. 346, 950 P.2d 789, abrogated on other grounds as recognized by Kersey v. Hatch,

2010-NMSC-020, 148 N.M. 381, 237 P.3d 683.

{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
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Southworth testified that Arrellano was able to prevent 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, 111 N.M. 263, 270, 804

P.2d 1082, 1089 (Ct. App. 1990) (noting that any penetration of the interior space, however

slight, is sufficient to constitute “entry” within the meaning of the burglary statute); State v.

Tixier, 89 N.M. 297, 298-99, 551 P.2d 987, 988-89 (Ct. App. 1976) (holding that evidence

that an unidentified instrument penetrated one-half inch inside a building is enough to

effectuate an entry under the burglary statute); see also State v. Muqqddin,

2010-NMCA-069, ¶¶ 11-13, 148 N.M. 845, 242 P.3d 412 (holding that the defendant’s act

of penetrating the gas tank of a van with a nail constituted an entry for purposes of the

burglary statute).

{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 testimony 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, 2008-NMCA-035, ¶ 10, 143 N.M. 668, 180 P.3d 675 (stating that doubledescription cases are those in which a single act results in multiple charges under different

criminal statutes). We review double jeopardy claims de novo. See State v. Bernal,

2006-NMSC-050, ¶ 6, 140 N.M. 644, 146 P.3d 289.

{10} In addressing double-description claims, we employ the two-part test set forth by our

Supreme Court in Swafford v. State, 112 N.M. 3, 13-15, 810 P.2d 1223, 1233-35 (1991). See

State v. Vallejos, 2000-NMCA-075, ¶ 6, 129 N.M. 424, 9 P.3d 668. “First, we examine

whether the conduct was unitary, meaning whether the same criminal conduct is the basis

for both charges.” Bernal, 2006-NMSC-050, ¶ 9. In determining whether conduct was

unitary, we “consider whether the defendant’s acts are separated by sufficient indicia of

distinctness.” State v. Lopez, 2008-NMCA-111, ¶ 9, 144 N.M. 705, 191 P.3d 563 (internal

quotation marks and citation omitted). “[W]e consider such factors as whether the acts were

close in time and space, their similarity, the sequence in which they occurred, whether other

events intervened, and a defendant’s goals for and mental state during each act.” State v.

Ford, 2007-NMCA-052, ¶ 12, 141 N.M. 512, 157 P.3d 77.
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{11} Applying these factors to the facts of this case, we conclude that Defendant’s conduct

was unitary. There was little separation in time and 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, 2008-NMCA-066, ¶ 15, 144 N.M. 333, 187 P.3d 679 (holding that firing three

shots separated by minutes and distance traveled was unitary conduct, where the shots were

fired during one high-speed chase in an attempt to escape from a pursuing officer); State v.

Mares, 112 N.M. 193, 200, 812 P.2d 1341, 1348 (Ct. App. 1991) (holding that the defendant

could be found guilty of only one count of aggravated battery when he was charged with

four counts involving pulling hair, beating, choking, and slapping the victim at various

different locations “over one violent rampage with little time between offensive contacts”).

{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 act 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, 1997-NMSC-058, ¶

61, 124 N.M. 277, 949 P.2d 660 (finding non-unitary conduct when a struggle “was an

intervening event between the initial battery and the acts that caused the death”).

{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,

2008-NMCA-066, ¶ 18. Absent a clear expression of legislative intent, we apply the test

stated in Blockburger v. United States, 284 U.S. 299, 304 (1932). See State v. Armendariz,

2006-NMSC-036, ¶ 21, 140 N.M. 182, 141 P.3d 526. Neither party argues that there is any

indication of legislative intent to impose multiple punishments, nor do we find any. We

therefore apply the Blockburger test. 

{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, 2009-NMCA-075, ¶ 9, 146 N.M. 605, 213

P.3d 509, cert. denied, 2009-NMCERT-006, 146 N.M. 733, 215 P.3d 42. “[I]f we conclude

that each statute requires proof of an element that the other does not, then a presumption

arises that our [L]egislature intended for the conduct to result in separately punishable

offenses.” State v. Caldwell, 2008-NMCA-049, ¶ 11, 143 N.M. 792, 182 P.3d 775. This

presumption can be overcome by other indicia of legislative intent. See id.

{15} Breaking and entering can be committed a number of ways. Section 30-14-8(A)

provides, in relevant part, that “[b]reaking and entering consists of the unauthorized entry

of any . . . dwelling . . . , where entry is obtained by fraud or deception, or 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
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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

dwelling 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, 2005-

NMSC-013, ¶ 14, 137 N.M. 447, 112 P.3d 1104. We do so by focusing on “the elements of

the statute as charged to the jury” and disregarding “the inapplicable statutory elements.”

Lee, 2009-NMCA-075, ¶ 11 (alteration, internal quotation marks and citation omitted).

When it is clear upon which statutory alternative the defendant was convicted, we apply the

Blockburger test by comparing the elements of the crime as charged with the elements of the

other crime at issue. See Franco, 2005-NMSC-013, ¶ 15 (observing that a strict application

of the Blockburger test may not be used if there are “multiple alternatives of a compound

statute and it is unclear which alternative the jury relied on”). In comparing the elements

under the Blockburger test, we do not examine the facts in detail. Franco, 2005-NMSC-013,

¶ 14.

{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 door. 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

damage 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

element 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 enactments, and courts therefore can rely on the common law

to construe unclear or ambiguous statutes. Sims v. Sims, 1996-NMSC-078, ¶ 24, 122 N.M.

618, 930 P.2d 153. The State asserts, and we agree, that courts should construe a statute

based on its common law meaning unless the Legislature intended otherwise. Id. ¶ 23. We

address the State’s argument as raising an issue of statutory construction concerning

legislative intent, which we consider de novo. Ortiz v. Overland Express, 2010-NMSC-021,

¶ 18, 148 N.M. 405, 237 P.3d 707. In our analysis, “we seek to give effect to legislative

intent by looking to the language used and considering the statute’s history and background.”

Id. ¶ 19 (alteration, internal quotation marks, and citation omitted).
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{19} At common law, the focus of the crime of burglary was to protect the security of the

home and those living within it. Minturn 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 force 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 common law burglary; a constructive breaking was sufficient. Id.; State

v. Ortiz, 92 N.M. 166, 168, 584 P.2d 1306, 1308 (Ct. App. 1978). In construing the New

Mexico burglary statute, this Court held that entry by fraud, deceit, or pretense was sufficient

to constitute the “unauthorized entry” requirement, which had been adopted by the New

Mexico Legislature instead of the common law requirement of “breaking.” See id. at 168,

584 P.2d at 1308 (observing that “New Mexico no longer defines burglary in terms of a

‘breaking’”).

{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, 756 F. Supp. 143, 148 (S.D.N.Y. 1991);

People v. Frey, 467 N.E.2d 302, 304 (Ill. App. Ct. 1984). However, this case does not

involve a burglary statute, but rather involves the crime of breaking and entering. Section

30-14-8(A) specifically prohibits “the breaking or dismantling of any part” of a dwelling.

It does not mention the concepts of common law burglary that the State contends are

controlling. Nor are we concerned with a constructive breaking under the charges against

Defendant. Rather, Section 30-14-8(A), by addressing the “breaking” of “any part” or “any

device used to secure,” contemplates a physical breaking contrary to common law burglary.

The Legislature departed from the common law burglary concepts in enacting Section 30-14-

8(A).

{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, 2009-NMCA-075, ¶

14 (stating that when one offense is subsumed within another, the inquiry is over and the

statutes are the same for double jeopardy purposes). As a result, Defendant’s right to be free

from double jeopardy was violated by his convictions for breaking and entering and criminal

damage to property.

 

CONCLUSION

{22} We affirm Defendant’s conviction for breaking and entering and vacate his

conviction for criminal damage to property. See Lee, 2009-NMCA-075, ¶ 16 (stating that

when double jeopardy exists, the offense carrying the lesser punishment is to be vacated).

 
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{23} IT IS SO ORDERED.

____________________________________

JAMES J. WECHSLER, Judge

WE CONCUR:

____________________________________

CELIA FOY CASTILLO, Chief Judge

____________________________________

LINDA M. VANZI, Judge

Topic Index for State v. Sorrelhorse, No. 29,894

CL CRIMINAL LAW

CL-BE Breaking and Entering

CL-CD Criminal Damage

CT CONSTITUTIONAL LAW

CT-DJ Double Jeopardy

CA CRIMINAL PROCEDURE

CA-DJ Double Jeopardy

CA-SE Substantial or Sufficient Evidence

CA-VJ Vacating Judgment