TR 

Appeal from a judgment of conviction for burgla entered 

No. 65273 

SEP 1 

131 Nev., Advance Opinion 65 

IN THE COURT OF APPEALS OF THE STATE OF NEVADA 

CARRIE SUZANNE MERLINO, 

Appellant, 

vs. 

THE STATE OF NEVADA, 

Respondent. 

following a jury trial. Eighth Judicial District Court, Clark County; Elissa 

F. Cadish, Judge. 

Vacated in part. 

Philip J. Kohn, Public Defender, Howard S. Brooks, Chief Deputy Public 

Defender, and Jasmin D. Spells, Deputy Public Defender, Clark County, 

for Appellant. 

Adam Paul Laxalt, Attorney General, Carson City; Steven B. Wolfson, 

District Attorney, Steven S. Owens, Chief Deputy District Attorney, and 

Colleen R. Baharav, Deputy District Attorney, Clark County, 

for Respondent. 

BEFORE GIBBONS, C.J., TAO and SILVER, JJ. 

OPINION 

By the Court, TAO, J.: 

Under Nevada law, a defendant commits the crime of burglary 

when he or she enters a building with the intent to commit a predicate 

crime inside the building. The question raised in this appeal is whether 

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NRS 193.0145, NRS 205.060(1), and NRS 205.060(5), which define the 

acts that can constitute an entry into a building for purposes of the 

burglary statute, encompass selling stolen property through the 

retractable sliding tray of a pawn shop's drive-through window. 

A jury convicted appellant Carrie Suzanne Merlino of burglary 

for doing exactly that. On appeal, we conclude that no reasonable person 

could conclude that the sliding tray fell within the outer boundary of the 

building that housed the pawn shop, and therefore the evidence 

introduced at trial was insufficient to demonstrate that Merlino 

committed an unlawful entry of the building as defined in the burglary 

statutes. Accordingly, we vacate the conviction on count five. 

FACTS 

Merlino and her boyfriend, Dennis Byrd, befriended neighbor 

Teresa Wilson and would occasionally visit her in her apartment. During 

their visits, Merlino would sometimes bring Wilson food, clean her 

apartment, and run errands for her. Wilson eventually noticed that some 

jewelry was missing from her apartment and reported the theft, informing 

detectives with the Las Vegas Metropolitan Police Department that 

Merlino and Byrd might be responsible for the missing items. During 

their investigation, the detectives learned that Merlino had pawned items 

matching the descriptions of Wilson's missing jewelry. Wilson identified 

the pawned items as belonging to her and indicated that Merlino did not 

have permission to possess those items. Merlino was subsequently 

charged by way of indictment with conspiracy to commit a crime, grand 

larceny, and three counts of burglary. She was convicted on all counts but 

on appeal challenges only her conviction on count five, one of the three 

counts of burglary. 

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Count five of the indictment charged Merlino with entering an 

EZ-Pawn store on October 24, 2011, with the intent to obtain money under 

false pretenses by pawning items stolen from Wilson. The evidence 

introduced at trial in support of this count demonstrated that, on that 

date, Merlino pawned five items of jewelry through the drive-through 

window of the EZ-Pawn by placing them onto a metal tray that slid in and 

out of the building. 

EZ-Pawn employee Leonard Yazzie described the drivethrough window and its tray. Yazzie could not recall the particular 

transaction involving Merlino but testified that, in general, pawn 

transactions through the drive-through window required a customer 

outside the store to place items onto a sliding tray, which the cashier 

would extend out to the customer and then pull back into the interior of 

the store. The cashier would retrieve the items from the tray and place 

documents and money onto the tray before sliding it back outside the store 

to where the customer could access the tray. Only when extended could 

the customer access the tray; when retracted, the tray was enclosed 

entirely within the walls of the building and could not be accessed from 

outside. 

After the close of evidence, the district court instructed the 

jury. Among the instructions given was Instruction No. 23, which stated 

that "[am n entry is deemed complete when, however slight, any portion of 

the intruder's body penetrates the space within the building." Based upon 

this definition, the State argued that the sliding tray constituted part of 

the structure of the building and, therefore, Merlino entered the building 

by using the tray to pawn Wilson's property. Merlino maintained that no 

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part of her body entered the interior of the building and, consequently, no 

entry occurred. 

ANALYSIS 

In this appeal, Merlino challenges only one of her three 

burglary convictions, namely, count five, which charged her with entering 

the EZ-Pawn store on October 24, 2011, with the intent to commit the 

crime of obtaining money under false pretenses.1Merlino 'concedes P'that 

substantial evidence was introduced at trial to support her convictions on 

the remaining counts. 

As to count five, however, Merlino contends that insufficient 

evidence exists to support her conviction. The test for sufficiency of the 

evidence in a criminal case is "whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact could 

have found the essential elements of the crime beyond a reasonable 

doubt." McNair v. State, 108 Nev. 53, 56, 825 P.2d 571, 573 (1992) 

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). "[I]t is the jury's 

function, not that of the court, to assess the weight of the evidence and 

determine the credibility of witnesses." Id. (citing Walker v. State, 91 Nev. 

724, 726, 542 P.2d 438, 438-39 (1975)). 

Merlino argues that the crime of burglary requires "entry" into 

the premises, and no such "entry" occurred when she merely placed items 

onto, and removed money from, the sliding tray of the drive-through 

window. The principal authority cited by Merlino is Smith v. First 

Judicial District Court, 75 Nev. 526, 347 P.2d 526 (1959), in which the 

Nevada Supreme Court held that removing items from the open bed of a 

pickup truck was not a burglarious "entry" of the truck itself. In response, 

the State argues that the sliding tray was part of the building, and 

therefore when Merlino's hand entered the tray, the hand necessarily 

4 

cy< 

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entered the building itself. For the reasons set forth below, we agree with 

Merlino. 

Nevada's burglary scheme 

In Nevada, the offense of burglary is defined by NRS 205.060, 

which states, in pertinent part, as follows: 

1. Except as otherwise provided in 

subsection 5, a person who, by day or night, enters 

any house, room, apartment, tenement, shop, 

warehouse, store, mill, barn, stable, outhouse or 

other building, tent, vessel, vehicle, vehicle trailer, 

semitrailer or house trailer, airplane, glider, boat 

or railroad car, with the intent to commit grand or 

petit larceny, assault or battery on any person or 

any felony, or to obtain money or property by false 

pretenses, is guilty of burglary. 

An essential element of the offense of burglary is that the 

offender "entered" a "building." NRS 193.0145 defines "enter" for purposes 

of the burglary statute as follows: 

"Enter," when constituting an element or part of a 

crime, includes the entrance of the offender, or the 

insertion of any part of the body of the offender, or 

of any instrument or weapon held in the offender's 

hand and used or intended to be used to threaten 

or intimidate a person, or to detach or remove 

property. 

NRS 193.0125 defines a "building" as including "every house, 

shed, boat, watercraft, railway car, tent or booth, whether completed or 

not, suitable for affording shelter for any human being, or as a place where 

any property is or will be kept for use, sale or deposit." 1 

1This definition is broader than the common-law definition, which 

defined "building" as a "structure with four walls and a roof, esp. a 

permanent structure." Black's Law Dictionary 234 (10th ed. 2014). 

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The question before us is whether the evidence at trial, 

construed in the light most favorable to the State, was sufficient to 

demonstrate that Merlino entered the EZ-Pawn within the meaning of 

NRS 193.0125, NRS 193.0145, and NRS 205.060, by pawning items 

through the sliding tray of the drive-through window. In this case, there 

is no evidence that Merlino used a weapon or otherwise "threaten[ed] or 

intimidate[d]" any person during the commission of the charged crime. 

Therefore, for Merlino's conviction to stand, the evidence adduced at trial 

must demonstrate that some part of Merlino's body, or something held in 

her hand, entered the building in question within the meaning of Nevada's 

burglary statutes. 

Determining whether such an entry occurred in this case 

reveals a gap in Nevada's statutory burglary scheme. NRS 193.0125 

defines the term "building" with reference to the functionality of a 

structure; specifically, a structure is a "building" that can be burglarized if 

it is functionally suitable to afford shelter or to keep property for use, sale, 

or deposit. NRS 193.0145 defines "entry" with respect to the offender's 

body or any tools that he or she uses. But the burglary statutes do not 

define the terms "enter" or "building" with reference to the size, shape, 

dimensions, or physical appearance of a particular structure. 

Consequently, the statutes do not delineate where the outer boundary of a 

structure begins and ends for purposes of determining when a particular 

structure has, or has not, been entered within the meaning of NRS 

193.0145. Yet this is precisely the question before us in this appeal. 

Thus, resolving this appeal requires us to look outside of the statutes for 

guidance. 

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When the Legislature has not stepped in to address a 

particular question, we may look to the common law for an answer. See 

Vansickle v. Haines, 7 Nev. 249, 285 (1872) (stating that the common law, 

"so far as it is not repugnant to or inconsistent with, the constitution or 

laws of the United States, or the laws of the territory of Nevada, shall be 

the rule of decision in all courts of this territory. . . . [The common law] 

should remain in force until repealed by the legislature" (internal 

quotations omitted)). 

Burglary at common law 

The crime of burglary was originally a creature of the common 

law, but "[o]f all common law crimes, burglary today perhaps least 

resembles the prototype from which it sprang." Minturn T. Wright III, 

Note, Statutory Burglary—The Magic of Four Walls and a Roof, 100 U. Pa. 

L. Rev. 411, 411 (1951). At common law, burglary was the breaking and 

entering of a dwelling in the nighttime, and the law was intended to 

protect the sanctity of residences when its inhabitants were likely to be 

asleep and vulnerable. Id. at 411-12. Thus defined, burglary was not an 

offense against real or personal property, but rather one against the 

habitation. See People v. Davis, 958 P.2d 1083, 1088 (Cal. 1998). 

Consequently, burglary was originally "a crime of the most precise 

definition, under which only certain restricted acts were criminal." 

Wright, supra, at 411. Most states, however, have replaced the commonlaw crime with broader statutory definitions under which burglary "has 

become one of the most generalized forms of crime," encompassing not only 

personal abodes but also myriad other structures and even vehicles and 

commercial businesses in which people are unlikely to reside. Id. 

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Nevada adopted and applied the common-law definition of the 

crime of burglary until 1911, when it enacted the original statutes that, 

over time, evolved into NRS 193.0125, NRS 193.0145, and NRS 205.060. 

The statutory definition of burglary originally created in 1911, and whose 

core has survived until today, is significantly broader than the commonlaw definition in important ways. 2But, as noted, Nevada never 

legislatively defined the term "building" in a way that objectively explains 

where one begins and ends or, put another way, whether and when one 

has been "entered" or not under NRS 193.0145. In reviewing the common 

law for guidance, the problem we encounter is that many of the terms 

historically used to describe the crime of burglary were somewhat illdefined. For example, an "entry" was traditionally deemed to occur "when 

any part of the defendant's person passes the line of the threshold." 3 

Wharton's Criminal Law § 322 (15th ed. 1995); see also 12A C.J.S. 

Burglary § 28 ("For purposes of a burglary conviction, a person must 

penetrate whatever forms a structure's outer boundary. ."). 

2For example, under the current statute, breaking is no longer an 

essential element of the crime. State v. Adams, 94 Nev. 503, 505, 581 P.2d 

868, 869 (1978); see also NRS 205.060(1). Rather, the crime only requires 

an entry with the proper intent to commit an enumerated crime. Id. 

Further, the entry no longer needs to be forcible, nor does the crime need 

to occur at night. See Hernandez v. State, 118 Nev. 513, 531, 50 P.3d 

1100, 1113 (2002); see also NRS 205.060(1). Also, consent to the entry is 

not a defense to burglary if the person "acquired the entry with felonious 

intent." Barrett v. State, 105 Nev. 361, 364, 775 P.2d 1276, 1277 (1989). 

Finally, like many other states, Nevada has expanded the types of 

structures that can be burglarized to include houses, boats, watercraft, 

railway cars, tents, or booths, and the like. NRS 193.0125; NRS 

205.060(1). 

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Consequently, the traditional definition of an "entry" and the traditional 

definition of a "building" were defined primarily in relation to each other; 

a building was entered when its threshold or outer boundary was 

penetrated. 

At common law, the most widely used legal test for defining 

the outer boundary of a building, and when a building has been "entered," 

was to inquire whether the "airspace" contained within it has been 

penetrated. 3 See Davis, 958 P.2d at 1094 (Baxter, J., dissenting); Gant v. 

State, 640 So. 2d 1180, 1182 (Fla. Dist. Ct. App. 1994), receded from on 

other grounds by Norman v. State, 676 So. 2d 7 (Fla. Dist. Ct. App. 1996). 

As some courts have noted, "[jilt is the nature of the enclosure that creates 

[prohibited space]." State v. Holt, 352 P.3d 702, 706 (N.M. Ct. App.) 

(citation omitted), cert. granted, P.3d (N.M. Ct. App. 2015). See 

People v. Valencia, 46 P.3d 920, 925 (Cal. 2002) ("The airspace of a 

building is not independent of the outer boundary of a building; rather, the 

airspace of a building simply is that which is surrounded by the building's 

outer boundary."), overruled in part on other grounds by People v. 

Yarborough, 281 P.3d 68 (Cal. 2012). 

When analyzing conventional buildings that were most 

commonly constructed decades ago, courts developed an understanding 

over time regarding where the boundaries of most such buildings were 

located. In most states, a structure's outer boundary was generally 

3The instruction given to the jury in this case (Instruction No. 23) 

appeared to have been modeled after the common-law test. 

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understood to include its roof, walls, doors, and windows. 4The case at 

hand, however, involves a feature constructed onto a building that was not 

as common a few decades ago as it is today, and here we see the commonlaw test fall short. A century ago, most abodes and businesses were 

conventionally constructed of a primarily rectangular shape with four 

walls, a roof, and clearly defined doors and windows; defining the 

boundaries of such simple structures was a relatively straightforward 

endeavor and the "airspace" test could be easily applied in most instances. 

But in an era in which buildings are no longer exclusively rectangular and 

may have such features as retractable roofs, sliding partitions, moveable 

awnings, or rolling shutters, and in which the outer boundaries of a 

4See Holt, 352 P.3d at 706 ("[I] n general, the roof, walls, doors, and 

windows constitute parts of a building's outer boundary, the penetration of 

which is sufficient for entry." (quoting Valencia, 46 P.3d at 925)); State v. 

Kindred, 307 P.3d 1038, 1041 (Ariz. Ct. App. 2013) ("a person must 

penetrate whatever forms a structure's outer boundary—a door, window, 

or wall, for example—but need not go further to have entered the 

structure"). Other courts have held that such things as the door jamb, 

window screen, and screen door also fall within the building's outer 

boundary. See People v. Garcia, 16 Cal. Rptr. 3d 833, 840 (Ct. App. 2004) 

(jamming crowbar into door jamb penetrated outer boundary of building); 

People v. Moore, 37 Cal. Rptr. 2d 104, 106 (Ct. App. 1994) (penetrating 

area between screen door and door sufficient for entry into outer 

boundary); Commonwealth v. Burke, 467 N.E.2d 846, 848-49 (Mass. 1984) 

(breaking outer storm window constituted entry even if inner window 

intact); Williams v. State, 997 S.W.2d 415, 417 (Tex. Crim. App. 1999) 

(breaking a door frame was burglarious entry); Ortega v. State, 626 S.W.2d 

746, 747 (Tex. Crim. App. 1981) (a failed attempt to open a wooden door 

after removing its screen door constituted entry into outer boundary); but 

see Stamps v. Commonwealth, 602 S.W.2d 172, 173 (Ky. 1980) (breaking 

exterior surface of cinder block wall not entry; interior of the blocks 

themselves was "not a protected space"). 

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building are no longer necessarily either fixed in place or easily 

recognizable, any test focused upon a building's "airspace" becomes 

increasingly subjective and arbitrary. As in this case, many commercial 

businesses today conduct at least some of their business through deposit 

windows, drop boxes, sliding trays, chutes, portals, tubes, slides, ramps, 

canisters, and slots of various configurations which may move in various 

ways, and which may, or may not, have lids, doors, covers, walls, tops, 

raised edges, or other features. Inquiring whether these features fall 

within the "outer boundary" of a building and serve to define "airspace" 

verges on an exercise in empty rhetoric rather than a search for a rigorous 

and meaningful definition of an essential element of a felony crime. 

Indeed, courts applying the "airspace" test frequently find 

themselves wrestling over such minutiae as the distinction between an 

inner window and an outer window, Commonwealth v. Burke, 467 N.E.2d 

846, 849 (Mass. 1984); whether the interior of a home begins at the 

exterior surface or interior surface of a door, State v. Kindred, 307 P.3d 

1038, 1040-41 (Ariz. Ct. App. 2013); where the last barrier to the interior 

of the house was located, State v. Pigques, 310 S.W.2d 942, 944 (Mo. 1958); 

and whether the distance between a roof and a ceiling falls within the 

"airspace" of a home, Miller v. State, 187 So. 2d 51, 52 (Fla. Dist. Ct. App. 

1966). 

Consequently, California (whose burglary statute 

substantially mirrors Nevada's) 5expressly rejected the "airspace" test as a 

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5See State v. White, 130 Nev. n.1, 330 P.3d 482, 485 n.1 

(2014) ("California's burglary statute is nearly identical to Nevada's. . . ."). 

Cal. Penal Code § 459 (West 2010) provides, in relevant part, that "[e]very 

person who enters any. . . tenement, shop, warehouse, store. . . or other 

continued on next page... 

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comprehensive test for determining the boundary of a building or 

inquiring whether it has been entered. See Valencia, 46 P.3d at 925 ("[W] e 

have misgivings about the general usefulness of an airspace test to define 

the outer boundary of a building for purposes of burglary."); People v. 

Nible, 247 Cal. Rptr. 396, 399 (Ct. App. 1988) ("in our view, the 'air space' 

test, although useful in some situations, is inadequate as a comprehensive 

test for determining when a burglarious entry occurs"). Some other states 

have also limited the "airspace" test. See Holt, 352 P.3d at 707 (reviewing 

cases from several states). 

Instead, recognizing that modern burglary statutes exist to 

protect a property owner's "possessory interest in a building" and the 

safety of its occupants, California has supplemented the "airspace" test 

with a "reasonable belief' test, articulated as follows: whenever the outer 

boundary of a building is not self-evident under the common-law 

"airspace" test, the outer boundary legally includes "any element that 

encloses an area into which a reasonable person would believe that a 

member of the general public could not pass without authorization." 

Valencia, 46 P.3d at 926. This test was designed to more closely mirror 

the normal expectations of privacy and safety that attach to property 

ownership and habitation. Id. at 924-25 (quoting Nible, 247 Cal. Rptr. at 

399) ("The proper question is whether the nature of a structure's 

composition is such that a reasonable person would expect some protection 

from unauthorized intrusions. . . [and whether the feature was] a 

permanent part of the dwelling. . . on which the occupants rely for 

...continued 

building. . . with intent to commit grand or petit larceny or any felony is 

guilty of burglary." 

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protection and that to open such a door, . . is a violation of the security of 

the dwelling house which is the peculiar gravamen of a burglarious 

breaking." (internal quotations omitted)). 

The Supreme Court of Nevada recently explored the purpose 

of Nevada's burglary statute in some detail and concluded that Nevada 

follows California burglary law in important respects. State v. White, 130 

Nev. „ 330 P.3d 482, 485 (2014) ("We agree with the analysis of the 

California Supreme Court in [People v. Gauze, 542 P.2d 1365 (Cal. 1975)1, 

which relied upon these policies to reach the conclusion that a person with 

an absolute right to enter a structure cannot commit burglary of that 

structure."). The court concluded that Nevada's burglary scheme was 

designed to protect the same interests as California's, namely, to protect 

the owner's possessory right in his property or premises and to prevent the 

danger associated with a felonious entry of the structure. Id. 

Because the scope and purpose of Nevada's statutory scheme 

fundamentally mirrors that of California, it follows that we may consider 

California jurisprudence in defining the "outer boundary" of a building 

and analyzing when it has been "entered" under NRS 193.0145 and NRS 

205.060. See generally:City of Las Vegas v. Cliff Shadows Prof. Plaza, 

LLC, 129 Nev. , 11.4, 293 P.3d 860, 865 11.4 (2013) ("This court has 

often relied on the decisions of other jurisdictions when, as here, it is faced 

with issues of first impression."). 

We conclude that, when dealing with unorthodox contours or 

features such as the sliding tray in this case, the "reasonable belief' test 

represents a superior method for identifying the protected outer boundary 

of a structure than the common-law "airspace" test. Thus, whenever the 

outer boundary of a building is not self-evident from the shape and 

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contours of the structure itself, the outer boundary is legally defined to 

include "any element that encloses an area into which a reasonable person 

would believe that a member of the general public could not pass without 

authorization." Valencia, 46 P.3d at 926. On the other hand, if the outer 

boundary of the structure is self-evident because the shape and features of 

the structure are traditional, then the common-law "airspace" test may be 

satisfactory. 6 

Under this test, stepping onto an unenclosed front porch has 

been held not to constitute a burglarious entry because a reasonable 

person would not believe that he or she would need permission to merely 

step onto the porch. Id. (citing People v. Brown, 8 Cal. Rptr. 2d 513, 517 

(Ct. App. 1992). On the other hand, opening and walking through a screen 

door to an enclosed porch, or a locked gate covered with iron mesh in front 

of an enclosed and roofed stairway, has been held to constitute a 

burglarious entry because a reasonable person would believe that he or 

she needed permission to do so. Id. (citing People v. Wise, 30 Cal. Rptr. 2d 

413, 415-18 (Ct. App. 1994)); Bowers v. State, 297 S.E.2d 359 (Ga. Ct. App. 

1982). Similarly, climbing over the railing of a second-floor balcony 

bounded by a railing has also been held to constitute a burglarious entry. 

See Yarborough, 281 P.3d at 698. 

6Although we apply the "reasonable belief' test as a legal test to the 

facts of this case, in future cases, the district courts of this state should 

consider utilizing this test as a jury instruction whenever the jury is 

tasked with defining the "outer boundary" of a building or structure 

having unusual features and when such a building has been "entered." 

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The evidence in this case 

At trial, the State argued that Merlino entered the EZ-Pawn 

store by placing items onto—and removing money from—the sliding tray 

connected to the building while the tray was open. The dispositive 

question, however, is not whether she entered the tray, but rather 

whether she crossed the outer boundary of the building. Accordingly, the 

inquiry is whether the tray falls inside, or outside, the outer boundary of 

the building. Applying the "reasonable belief' test, the question becomes 

whether the tray, when open, constitutes an element that encloses an area 

into which a reasonable person would believe that a member of the 

general public could not pass without authorization. We conclude that it 

does not. 

Our conclusion arises from the natural operation of the tray, 

which is worth describing in detail. The tray in this case is retractable 

and can be manually opened and closed by the pawn shop cashier. When 

no customer is present, the tray is normally retracted into its closed 

position in which it rests entirely inside the perimeter of the wall of the 

pawn shop and its outer edge is flush with the wall. While closed, nothing 

can be placed into the tray from outside the building. When a customer 

wishes to do business through the drive-through window, the pawn shop 

cashier can manually push the tray outwards toward the customer so that 

it temporarily extends beyond the perimeter of the wall, giving the 

customer access to the tray for a few seconds during the transaction. After 

items have been placed inside the tray, the cashier may withdraw the tray 

into the perimeter of the wall into its closed position. A customer may 

place items into the tray while it is open, but the tray cannot be fully 

retracted into the store until the customer lets go of it. 

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When the tray is retracted entirely within the perimeter of the 

wall in its closed position, no reasonable person would believe that a 

member of the general public could force or pry the tray open without 

authorization in order to gain access to the interior of the building. While 

retracted into the building, the outer edge of the tray encloses an area that 

can reasonably be considered to fall within the permanent possessory 

rights of the building's owner. Thus, forcing open a tray that has been 

closed would clearly constitute a violation of the building's outer boundary. 

However, the analysis is very different when the tray is 

extended outward in its open position. When open, the tray temporarily 

(for only as long as it takes to complete the transaction) extends some 

distance outside of the perimeter of the wall and occupies an area outside 

of the wall, a few feet above the ground. No reasonable person would 

believe that violation of the area temporarily enclosed within the tray 

while extended threatened the owner's permanent possessory rights in the 

building. See People v. Davis, 958 P.2d 1083, 1089 (Cal. 1998) (holding 

that passing a forged check through the window chute of a business's 

walk-up window did not constitute a burglarious entry, because doing so 

did not violate the owner's possessory interest in the building). A building 

owner may construct a tray or box that attaches to the building in some 

way and moves around, but that does not mean that the owner necessarily 

"owns" the space within the box whenever it goes outside of the building as 

an incident of owning the building itself. 7In this case, the sliding tray 

fails the "reasonable belief' test, and an item placed within the sliding 

7He may own the box, but it is not because he owns the building. 

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tray cannot in any realistic sense be considered to be inside the boundary 

of the building until, and unless, the cashier manually draws it inside by 

retracting the tray. 

In this case, the retractable tray is far more akin to a tool or 

instrument that can be manipulated to move objects into and out of the 

outer boundary of the building than it is a part of the boundary itself. At 

common law, the use of an instrument to breach a building could 

constitute a burglarious entry. See id. at 1086 ("[A] burglary may be 

committed by using an instrument to enter a building—whether that 

instrument is used solely to effect entry, or to accomplish the intended 

larceny or felony as well."). But under NRS 193.0145, the instrument 

must be held in the offender's hand, or at least operated by the defendant, 

to constitute an "entry." NRS 193.0145 (entry can be through an 

"instrument or weapon held in the offender's hand and used. . . to detach 

or remove property"). 

Here, the tray was operated not by Merlino, but rather by the 

cashier, whose independent actions caused the tray to enter the building 

but who could have refused to do so. Thus, fairly described, Merlino 

placed stolen items into an instrument operated by someone else to cause 

something to enter the building after it left her hands. Her actions 

initiated a chain of events that ultimately caused the building to be 

entered, but the success of that chain of events depended upon the 

cooperation of the cashier. Merely setting in motion a chain of events 

involving other people that culminates in stolen property entering the 

building does not equate to a criminal entry of the building by Merlino 

herself. Were it otherwise, then Merlino could conceivably have been 

convicted of burglary for hiring a courier to carry stolen property into the 

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building, or even for mailing stolen items to the pawn shop through the 

U.S. mail. NRS 193.0145 was not intended to encompass these 

circumstances. 8 See Davis, 958 P.2d at 1087-88 (noting that mailing a 

forged check into a bank through the mail, sliding a ransom note under a 

door, or accessing a bank's computer via the Internet from a home 

computer, "cannot reasonably be argued" to constitute burglaries). 

Moreover, placing objects into the tray while standing outside 

does not implicate the same kinds of security and safety concerns as would 

arise had Merlino physically entered the pawn shop and potentially 

initiated a confrontation. See White, 130 Nev. at , 330 P.3d at 485 

(noting that "[b]urglary statutes 'are based primarily upon a recognition of 

the dangers to personal safety. . . that the intruder will harm the 

occupants in attempting to perpetrate the intended crime or to escape and 

the danger that the occupants will in anger or panic react violently to the 

invasion' (quoting People v. Gauze, 542 P.2d 1365, 1368 (Cal. 1975)). Her 

conviction for burglary cannot stand and must therefore be vacated. 9 

8The State argues that similar acts have been considered 

burglarious in various federal cases. See United States v. Goudy, 792 F.2d 

664 (7th Cir. 1986) (walk-up window of bank's drive-up facility); United 

States v. Phillips, 609 F.2d 1271 (8th Cir. 1979) (taking money from bank's 

drive-up window); United States v. Lankford, 573 F.2d 1051 (8th Cir. 

1978) (bank's night depository chute). But those cases were decided 

pursuant to federal bank robbery statutes that are substantially 

dissimilar to Nevada burglary law. 

9Our conclusion may be different had Merlino pried the tray open 

from its closed position in order to insert items into, or remove items from, 

the pawn shop. It might even be different had Merlino placed something 

into the tray while it was open and then forcefully pushed it into the 

building against the resistance of the cashier. In either of these cases, a 

reasonable person could believe that the tray was being used to breach the 

continued on next page... 

COURT OF APPEALS 

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In closing, in response to various arguments raised by the 

State, we note in passing that our disposition of this appeal does not 

depend upon whether Merlino was considered to have entered the store 

with her entire body, or merely a small portion of it such as her hand; 

either would suffice to constitute a burglarious entry had the actual 

boundary of the store been penetrated. Even the slightest penetration into 

a building (had the building been penetrated) would suffice to support a 

burglary conviction. 10 

...continued 

building in a way that violated the owner's property rights in the building. 

But no evidence was presented that Merlino did either of these things. 

1°NRS 193.0145; see Sears v. State, 713 P.2d 1218, 1220 (Alaska Ct. 

App. 1986) ("[An] intruder enters by entry of his whole body, part of his 

body, or by insertion of any instrument that is intended to be used in the 

commission of a crime."); Valencia, 46 P.3d at 928 ("Entry that is just 

barely inside the premises, even if the area penetrated is small, is 

sufficient."); State v. Faria, 60 P.3d 333, 339-40 (Haw. 2002) (even slight 

penetration by hand, foot, or instrument is sufficient to constitute 

burglary); Hebron v. State, 627 A.2d 1029, 1038 (Md. 1993) ("the term 

'entering'. . . requires that some part of the body of the intruder or an 

instrument used by the intruder crosses the threshold, even momentarily, 

of the house"); see also Edelen v. United States, 560 A.2d 527, 530 (D.C. 

1989); State v. Nichols, 572 N.W.2d 163, 164 (Iowa Ct. App. 1997); State v. 

Ervin, 573 P.2d 600, 601-02 (Kan. 1977); State v. Sneed, 247 S.E.2d 658, 

659 (N.C. Ct. App. 1978); Griffin v. State, 815 S.W.2d 576, 578 (Tex. Crim. 

App. 1991). 

COURT OF APPEALS 

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C.J. 

CONCLUSION 

For the foregoing reasons, we vacate Merlino's conviction on 

count five. 

Tao 

We concur: 

Silver 

J. 

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