2023 New Mexico Statutes › Chapter 30 - Criminal Offenses › Article 16 - Larceny › Section 30-16-3 - Burglary.

Burglary consists of the unauthorized entry of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, with the intent to commit any felony or theft therein.
A. Any person who, without authorization, enters a dwelling house with intent to commit any felony or theft therein is guilty of a third degree felony.
B. Any person who, without authorization, enters any vehicle, watercraft, aircraft or other structure, movable or immovable, with intent to commit any felony or theft therein is guilty of a fourth degree felony.
History:
1953 Comp., § 40A-16-3, enacted by Laws 1963, ch. 303, § 16-3; 1971, ch. 58, § 1.
ANNOTATIONS
Cross references.
— For assault with intent to commit burglary,
see
30-3-3 NMSA 1978.
For instruction on the essential elements of burglary,
see
UJI 14-1630 NMRA.
For instruction on aiding or abetting as accessory to crime other than attempt and felony murder,
see
UJI 14-2822 NMRA.
I. GENERAL CONSIDERATION.
Rule of
ejusdem generis
.
— Courts should use the
ejusdem generis
rule, which is codified in Section 12-2A-20 NMSA 1978, when interpreting the outer limits of the prohibited space that is protected by the burglary statute.
State v. Office of the Public Defender
, 2012-NMSC-029, 285 P.3d 622.
Rule of lenity.
— When deciding whether or not a burglary charge is appropriate, courts and district attorneys must consider whether or not this is the type of entry Section 30-16-3 NMSA 1978 was intended to deter. Any doubts about the construction of Section 30-16-3 NMSA 1978 must be resolved in favor of lenity.
State v. Office of the Public Defender
, 2012-NMSC-029, 285 P.3d 622.
New rule, narrowing the scope of what conduct is prosecuted under the burglary statute, should be applied retroactively.
— Where defendant was charged and convicted of felony burglary in 2010, and where, in 2015, defendant was again charged and convicted of numerous offenses, and where the state sought to enhance defendant's 2015 sentence pursuant to the Habitual Offender Act, § 31-18-17 NMSA 1978, relying on defendant's 2010 felony conviction, and where defendant claimed that his 2010 burglary conviction should not be used to enhance his 2015 sentence, based on the New Mexico supreme court's decision in
State v. Office of Public Defender ex rel. Muqqddin
, 2012-NMSC-029, which held for the first time that the act of penetrating a vehicle's gas tank and removing gas therefrom did not constitute burglary under § 30-16-3 NMSA 1978, the district court erred in determining defendant to be a habitual offender as alleged by the state and enhancing defendant's sentence in the 2015 case, because Muqqddin announced a new rule that altered the range of conduct or the class of persons that the law punishes, and should therefore be applied retroactively.
State v. Wood
, 2022-NMCA-009.
Purpose to protect possessory rights.
— The statutory offense of burglary is one against the security of property, and its purpose is to protect possessory rights.
State v. Sanchez
, 1987-NMCA-035, 105 N.M. 619, 735 P.2d 536, cert. denied, 105 N.M. 618, 735 P.2d 536.
Legislative consolidation intended.
— A comparison of this section and the statutes concerning burglary and unlawful entry that existed prior to 1963 (40-9-1, 40-9-6, 40-9-7, 40-9-10, 1953 Comp.) indicates that the new section is a consolidation of the old statutes and does not evidence an intention of the legislature to exclude from the crime of burglary unauthorized entries to structures other than dwellings. It is clear that he legislature intended the term "other structure" to be construed in its literal sense and that it not be limited by the specific language preceding it. It is proper for the court to consider prior and subsequent statutes in pari materia to determine legislative intent.
State v. Gonzales
, 1967-NMSC-168, 78 N.M. 218, 430 P.2d 376.
Common law expanded.
— Section 40-9-6, 1953 Comp., defines the offense of burglary so as to expand the common-law definition of that offense to include the breaking and entering of offices, shops and warehouses.
Martinez v. United States
, 295 F.2d 426 (10th Cir. 1961) (decided under prior law).
Crime of violence.
— The offense defined under this section of breaking and entering a dwelling house or other building with intent to commit a felony therein was a crime of violence for purposes of former 15 U.S.C. § 902(e) relating to the transporting of a firearm in interstate commerce after conviction of a crime of violence.
Martinez v. United States
, 295 F.2d 426 (10th Cir. 1961) (decided under prior law).
The district court properly included defendant's state burglary conviction as a violent felony under 18 U.S.C. § 924, the Armed Career Criminal Act.
United States v. Lujan
, 9 F.3d 890 (10th Cir. 1993).
Prosecution of Indians limited.
— Where a federal statute limiting the definition and punishment of burglary by an Indian within Indian country to the laws of the several states in force at the time of its enactment, and there was no law of New Mexico in effect at that time defining a crime of burglary as it was charged in the information, defendant's motion to dismiss the information was sustained.
United States v. Gomez
, 250 F. Supp. 535 (D.N.M. 1966).
II. MULTIPLE PROSECUTIONS.
Several burglaries.
— The burglary of several businesses in one building at approximately the same time constitutes not one offense, but several, and a defendant may be prosecuted for all such offenses.
State v. Ortega
, 1974-NMCA-060, 86 N.M. 350, 524 P.2d 522.
When one commits burglary of dwelling house one commits criminal trespass
based on that entry.
State v. Ruiz
, 1980-NMCA-123, 94 N.M. 771, 617 P.2d 160, superseded by statute,
State v. McCormack
, 1984-NMCA-042, 101 N.M. 349, 682 P.2d 742.
Two crimes shown.
— Evidence that a conspiracy to commit burglary was entered on the evening of November 16th, that the conspirators unsuccessfully attempted to carry out the conspiracy at 10:30 p.m. of that day, and that the burglary was performed between 9:00 and 9:30 a.m. of November 17th, showed two distinct crimes, and there was no factual basis for the contention that they were either the same or so similar that multiple convictions were prohibited.
State v. Watkins
, 1975-NMCA-126, 88 N.M. 561, 543 P.2d 1189, cert. denied, 89 N.M. 6, 546 P.2d 71.
Larceny not lesser included offense.
— Larceny is not a lesser included offense of burglary, since each crime includes an element not contained in the other. Burglary requires entry into a dwelling, whereas larceny does not, and larceny requires an actual taking, whereas burglary does not.
Yparrea v. Dorsey
, 64 F.3d 577 (10th Cir. 1995).
Larceny and burglary not merged.
— Prosecution for burglary and larceny arising out of the same event does not constitute double jeopardy since there is no merger when an accused is charged with both burglary and larceny though the charges stem from one transaction or event.
State v. Deats
, 1971-NMCA-089, 82 N.M. 711, 487 P.2d 139.
Since stealing is a necessary element of larceny but is not a necessary element of burglary, larceny is not necessarily involved in a burglary, and the two crimes do not merge, hence, defendant could be convicted of and sentenced for both crimes.
State v. McAfee
, 1967-NMSC-139, 78 N.M. 108, 428 P.2d 647.
Possession of burglary tools
is not necessarily involved in burglary.
State v. Everitt
, 1969-NMCA-010, 80 N.M. 41, 450 P.2d 927.
Burglary and possession of burglary tools does not merge.
— The crime of possession of burglary tools does not merge with the crime of burglary, and hence defendant's sentence for each of these crimes did not constitute double punishment.
State v. Everitt
, 1969-NMCA-010, 80 N.M. 41, 450 P.2d 927.
As the "overt act" required in the general attempt statute 30-28-1 NMSA 1978 did not necessarily involve possession of burglary tools, the crime of attempt to commit a felony of burglary did not merge with the crime of possession of burglary tools, and hence, defendant's sentence for each of these crimes did not constitute double punishment.
State v. Everitt
, 1969-NMCA-010, 80 N.M. 41, 450 P.2d 927.
Convictions for burglary and receiving improper.
— The state cannot convict a person under one indictment or information of receiving stolen property, and then subsequently convict him under another indictment or information of burglary, if the burglary conviction is dependent upon a theft by him of the same property, and he is shown to have been the person who actually took and asported the property during the burglarious entry.
State v. Gleason
, 1969-NMCA-054, 80 N.M. 382, 456 P.2d 215.
"Disposal" shown.
— Where the record supported the conclusion that the defendant "disposed of " property which he may have also stolen, as the theft and disposal were different acts, the principle that one who is a thief cannot be convicted of "receiving" the property he stole because the theft and receipt are the same act was inapplicable.
State v. Mitchell
, 1974-NMCA-057, 86 N.M. 343, 524 P.2d 206.
Entry of a vehicle.
— The use of a nail to penetrate a vehicle's gas tank constitutes an entry under Section 30-16-3 NMSA 1978.
State v. Muqqddin
, 2010-NMCA-069, 148 N.M. 845, 242 P.3d 412, cert. granted, 2010-NMCERT-008, 148 N.M. 942, 242 P.3d 1288.
Where, without the permission of the owner of a van to enter the van, defendant used a nail to penetrate the gas tank to drain gas from the tank, defendant was guilty of burglary.
State v. Muqqddin
, 2010-NMCA-069, 148 N.M. 845, 242 P.3d 412, cert. granted, 2010-NMCERT-008, 148 N.M. 943, 242 P.3d 1289.
Entry into a retail store.
— As a general rule, the court will presume that retail stores are open to the public during business hours and, therefore, an individual who enters a retail store with the intent to shoplift is not guilty of burglary.
State v. Baca
, 2014-NMCA-087, cert. granted, 2014-NMCERT-008.
Where a group of people, including defendant, entered Costco; no person in the group was a member of Costco, but one person showed the Costco greeter a membership card that belonged to another person; one person in the group placed items in a bag that other persons in the group pointed out; at the checkout line, the group purchased only water and ice cream; Costco was a membership warehouse; one had to be a member or a guest of a member to enter the store; and "member only" signs were posted outside Costco as notice to the public that only members could enter, defendant's entry into Costco, even assuming that defendant was aware that the person presenting the membership card was a non-member, was not sufficient as a matter of law to establish an unauthorized entry and the crime of burglary.
State v. Baca
, 2014-NMCA-087, cert. granted, 2014-NMCERT-008.
III. ELEMENTS OF OFFENSE.
Entry into separate residence of spouse.
— Section 40-3-3 NMSA 1978 does not provide immunity from prosecution for burglary of a spouse's separate residence.
State v. Parvilus
, 2014-NMSC-028,
rev'g
2013-NMCA-025, 297 P.3d 1228.
Where, because of domestic problems, defendant rented a separate apartment for defendant's spouse; the parties agreed that the apartment was the spouse's separate residence, that defendant would not have a key to the apartment, and that defendant did not have the spouse's permission to enter the apartment; and several months later, defendant entered the spouse's apartment through a window, 40-3-3 NMSA 1978 did not preclude defendant's conviction for burglary of the spouse's separate dwelling.
State v. Parvilus
, 2014-NMSC-028,
rev'g
2013-NMCA-025, 297 P.3d 1228.
The plain language of Section 40-3-3 NMSA 1978
renders inter-spousal burglary an impossibility, because the New Mexico burglary statutes protect the possessory right to exclude and Section 40-3-3 NMSA 1978 dictates that spouses have no such right to exclude the other spouse.
State v. Parvilus
, 2013-NMCA-025, 297 P.3d 1228, cert. granted, 2013-NMCERT-001.
Entry into residence of estranged spouse.
— Where defendant entered defendant's estranged spouse's apartment without permission, kidnapped the victim, and killed the victim, Section 40-3-3 NMSA 1978 prohibited defendant's spouse from excluding defendant from the spouse's apartment and defendant's entry into the apartment, even with felonious purpose, did not constitute burglary as a matter of law.
State v. Parvilus
, 2013-NMCA-025, 297 P.3d 1228, cert. granted, 2013-NMCERT-001.
Parts of protected spaces.
— An entry into a part of the enumerated structures in Section 30-16-3 NMSA 1978 is not equal to an entry of that structure itself.
State v. Office of the Public Defender
, 2012-NMSC-029, 285 P.3d 622.
Protected spaces must be enclosed.
— The right to exclude others is the possessory interest with which burglary is primarily concerned. For an area to be considered prohibited space under Section 30-16-3 NMSA 1978, it must have some sort of enclosure.
State v. Office of the Public Defender
, 2012-NMSC-029, 285 P.3d 622.
A vehicle's gas tank and wheel wells are not protected spaces.
— A vehicle's gas tank and wheel wells do not constitute a protected space under Section 30-16-3 NMSA 1978 and cannot be burglarized under the statute.
State v. Office of the Public Defender
, 2012-NMSC-029, 285 P.3d 622.
A vehicle's gas tank is not a protected space.
— Where defendant used a piece of metal to puncture a gas tank and took the gas, the defendants did not commit burglary.
State v. Office of the Public Defender
, 2012-NMSC-029, 285 P.3d 622,
rev'g
2010-NMCA-069, 148 N.M. 845, 242 P.3d 412.
The use of a nail to penetrate a vehicle's gas tank constitutes an entry under Section 30-16-3 NMSA 1978.
State v. Muqqddin
, 2010-NMCA-069, 148 N.M. 845, 242 P.3d 412, cert. granted, 2010-NMCERT-008, 148 N.M. 942, 242 P.3d 1288.
Entry of a vehicle.
— Where, without the permission of the owner of a van to enter the van, defendant used a nail to penetrate the gas tank to drain gas from the tank, defendant was guilty of burglary.
State v. Muqqddin
, 2010-NMCA-069, 148 N.M. 845, 242 P.3d 412, cert. granted, 2010-NMCERT-008, 148 N.M. 942, 242 P.3d 1288.
A vehicle's wheel wells are not a protected space.
— Where defendant removed the two rear wheels of a vehicle and the lug nuts of the front wheels, the defendants did not commit burglary.
State v. Office of the Public Defender
, 2012-NMSC-029, 285 P.3d 622.
Structure.
— Where the defendant took items from a covered area that was open on three sides but directly attached to the wall of a store; the area was covered by a metal roof that was supported by metal posts; the area was used to store merchandise and equipment; a door from the main building led from the store to the covered area; and a chain-link fence topped with barbed wire abutted the open yard that surrounded the covered area, the covered area constituted a structure.
State v. Gonzales
, 2008-NMCA-146, 145 N.M. 110, 194 P.3d 725, cert. denied, 2008-NMCERT-009, 145 N.M. 257, 196 P.3d 488.
Burglary is offense against security of building,
and when that security is breached by the penetration of an instrument into the building there has been an entry within the meaning of this statute.
State v. Tixier
, 1976-NMCA-054, 89 N.M. 297, 551 P.2d 987.
Entry.
— Although New Mexico no longer defines burglary in terms of a "breaking," the offense of burglary remains an offense against the security of the property which is entered.
State v. Ortiz
, 1978-NMCA-074, 92 N.M. 166, 584 P.2d 1306, cert. denied, 92 N.M. 79, 582 P.2d 1292.
In establishing a burglary, any penetration, however slight, of the interior space is sufficient to constitute entry.
State v. Reynolds
, 1990-NMCA-122, 111 N.M. 263, 804 P.2d 1082, cert. denied, 111 N.M. 164, 803 P.2d 253 (1991).
Unlawful entry of building in nighttime constitutes "burglary,"
the punishment being dependent upon the degree of the offense.
Miller v. Cox
, 1960-NMSC-108, 67 N.M. 414, 356 P.2d 231 (decided under prior law).
Breaking not required.
— The requirement of a "breaking" is no longer included in New Mexico's statutory definition of burglary, which is not concerned with distinctions between evidence of breaking as opposed to evidence of entering.
State v. Tixier
, 1976-NMCA-054, 89 N.M. 297, 551 P.2d 987.
Entry plus intent.
— The crime of burglary is complete when the defendant makes an unauthorized entry with intent to commit any felony or theft.
State v. Madrid
, 1972-NMSC-016, 83 N.M. 603, 495 P.2d 383;
State v. Gutierrez
, 1971-NMCA-058, 82 N.M. 578, 484 P.2d 1288, cert. denied, 82 N.M. 562, 484 P.2d 1272.
The crime of burglary is complete when there is an unauthorized entry with the intent to commit a felony or theft in the vehicle or structure entered.
State v. Wilkerson
, 1972-NMCA-067, 83 N.M. 770, 497 P.2d 981;
State v. Everitt
, 1969-NMCA-010, 80 N.M. 41, 450 P.2d 927;
State v. Ford
, 1970-NMCA-061, 81 N.M. 556, 469 P.2d 535.
In order to prove the crime of burglary, it is required to prove unlawful entry of a structure with the necessary intent.
State v. Hinojos
, 1967-NMCA-003, 78 N.M. 32, 427 P.2d 683.
The mere entry of an occupied dwelling house in the nighttime with intent to commit larceny is burglary.
State v. Ocanas
, 1956-NMSC-106, 61 N.M. 484, 303 P.2d 390.
Unauthorized entry required.
— A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with purpose to commit a crime therein, unless the premises are at the time, open to the public or the actor is licensed or privileged to enter.
State v. Sanchez
, 1987-NMCA-035, 105 N.M. 619, 735 P.2d 536, cert. denied, 105 N.M. 618, 735 P.2d 536.
Entry into locked office adjacent to public motel lobby constituted unauthorized entry.
— Where defendant's accomplice entered a secured clerk's office, separate from the public motel lobby, by climbing over a chest-high counter top, broke the lock on a cash drawer and removed $250, the accomplice's conduct constituted an unauthorized entry under the burglary statute, because the clerk's office was designed to remain separate from the public lobby area, and the enclosure's physical characteristics were such that a reasonable person would expect some protection from unauthorized intrusions.
State v. Mestas
, 2016-NMCA-047.
Burden on state to prove unauthorized entry.
— It is not necessary that every person who could consent to entry testifies that consent was given as the burden on the state is to prove unauthorized entry beyond a reasonable doubt.
State v. Mireles
, 1971-NMCA-027, 82 N.M. 453, 483 P.2d 508.
Types of unauthorized entry.
— A trespassory entry would be an unauthorized entry, as would an entry without consent or on the basis of an unauthorized consent.
State v. Ortiz
, 1978-NMCA-074, 92 N.M. 166, 584 P.2d 1306, cert. denied, 92 N.M. 79, 582 P.2d 1292.
Unauthorized entry.
— Entry by fraud, deceit or pretense, whether characterized as trespassory, without consent or without authorized consent, is an unauthorized entry, similar to the constructive "breaking" at common law.
State v. Ortiz
, 1978-NMCA-074, 92 N.M. 166, 584 P.2d 1306, cert. denied, 92 N.M. 79, 582 P.2d 1292.
Burglary statute intended to punish harmful entry.
— The burglary statute has a greater purpose than merely protecting property, but it is also 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 the burglary statute; first and foremost, it is the harmful entry that is being punished under this section. State v. Archuleta, 2015-NMCA-037,
overruling
State v. Tower
, 2002-NMCA-109, 133 N.M. 32, 59 P.3d 1264, and cert. granted, 2015-NMCERT-001.
Where defendant violated an order of no trespass by entering an otherwise open public shopping area with the intent to commit a theft, his conduct did not implicate the feeling of violation and vulnerability generally associated with the crime of burglary and did not constitute the type of harmful entry required for a violation of the burglary statute. State v. Archuleta, 2015-NMCA-037,
overruling
State v.Tower
, 2002-NMCA-109, 133 N.M. 32, 59 P.3d 1264, and cert. granted, 2015-NMCERT-001.
Effect of trespass notice.
— A defendant, previously given trespass notice by a store that any subsequent entry would be considered criminal trespass, who later enters the store for the purpose of shoplifting, may be charged and convicted for burglary, as the entry was unauthorized.
State v. Tower
, 2002-NMCA-109, 133 N.M. 32, 59 P.3d 1264, cert. denied, 133 N.M. 30, 59 P.3d 1262.
Burglary of vehicle separate offense from taking or tampering.
— The offense of burglary of a motor vehicle requires an unauthorized entry. Unauthorized entry is not an element of either unlawful taking of a vehicle, Section 66-3-504 NMSA 1978 (now Section 30-16D-1 NMSA 1978) , or tampering with a vehicle, Section 66-3-506 NMSA 1978 (now Section 30-16D-5 NMSA 1978) . This difference in the elements of the offenses is sufficient ground to reject the defendant's contention that the statutes are the same and that he should not be charged with the more general burglary charge.
State v. Hernandez
, 1993-NMCA-132, 116 N.M. 562, 865 P.2d 1206, cert. denied, 116 N.M. 801, 867 P.2d 1183.
Penetration by instrument.
— Evidence of a break-in by use of an instrument which penetrates into the building is evidence of entry into the building, and the sufficiency of this evidence is not destroyed by a failure to prove that the instrument was used to steal something from the building or to commit another felony.
State v. Tixier
, 1976-NMCA-054, 89 N.M. 297, 551 P.2d 987.
Unoccupied structure still "dwelling house".
— A structure, even if unoccupied for a year, does not lose its character as a "dwelling house" for purposes of Subsection A, unless there is evidence that the last tenant has abandoned the structure with no intention of returning.
State v. Ervin
, 1981-NMCA-068, 96 N.M. 366, 630 P.2d 765.
Attached garage with no opening to house was part of dwelling house
within the meaning of this section because the garage was a part of the habitation, directly contiguous to and a functioning part of the residence.
State v. Lara
, 1978-NMCA-112, 92 N.M. 274, 587 P.2d 52, cert. denied, 92 N.M. 260, 586 P.2d 1089.
"Other structure" construed literally.
— Under this section the legislature intended the term "other structure" to be construed in its literal sense and that it not be limited by the specific language preceding it.
State v. Gonzales
, 1967-NMSC-168, 78 N.M. 218, 430 P.2d 376.
Food store included.
— Under this section ejusdem generis is resorted to merely as an aid in determining legislative intent and does not foreclose the inclusion of a food store within the term "other structure."
State v. Gonzales
, 1967-NMSC-168, 78 N.M. 218, 430 P.2d 376.
Entry into soft drink vending machine.
— The term "structure" as set forth in this section does not include the unauthorized entry into a soft drink vending machine located outside a building or other structure with intent to commit a felony or theft within.
State v. Bybee
, 1989-NMCA-071, 109 N.M. 44, 781 P.2d 316.
Entering open store.
— A person who enters a store open to the public with intent to shoplift or commit larceny is not guilty of burglary.
State v. Rogers
, 1972-NMCA-053, 83 N.M. 676, 496 P.2d 169.
Entry into inner door.
— Where there is lawful entry into a building, an unauthorized entry into an inner door of any unit with the necessary intent may be prosecuted for burglary.
State v. Ortega
, 1974-NMCA-060, 86 N.M. 350, 524 P.2d 522.
Reaching into bed of pickup truck
with the intent to commit a felony may constitute a burglary within the meaning of this section.
State v. Rodriguez
, 1984-NMCA-034, 101 N.M. 192, 679 P.2d 1290, cert. denied, 101 N.M. 189, 679 P.2d 1287.
Post office box deemed "structure".
— A post office box was a "structure" within the meaning of this section. The separately secured area that constituted the structure was the area consisting of the mail sorting room and the post office boxes, the backs of which opened into the sorting room.
State v. Gregory
, 1993-NMCA-146, 117 N.M. 104, 869 P.2d 292, cert. denied, 117 N.M. 215, 870 P.2d 753 (1994).
Fence does not constitute "structure"
within the meaning of this section.
State v. Foulenfont
, 1995-NMCA-028, 119 N.M. 788, 895 P.2d 1329, cert. quashed, 120 N.M. 498, 903 P.2d 240.
Identity of place.
— The identity of the place burglarized was an essential element of crime denounced by Laws 1853-1854, p. 100, §§ 11 (40-9-6, 1953 Comp., relating to breaking and entering into places other than dwellings).
State v. Salazar
, 1938-NMSC-021, 42 N.M. 308, 77 P.2d 633 (decided under prior law).
Intent to commit felony under burglary statute includes general criminal intent.
— When one intends to commit a felony or theft under the burglary statute, one also has the general criminal intent of purposely doing an act even though he may not know the act is unlawful.
State v. Ruiz
, 1980-NMCA-123, 94 N.M. 771, 617 P.2d 160.
Specific intent to commit felony or theft is essential element
of the state's case to be proved beyond a reasonable doubt, the gravamen of the offense of burglary being the intent with which the structure is entered.
State v. Elliott
, 1975-NMCA-087, 88 N.M. 187, 539 P.2d 207,
rev'd on other grounds
, 1976-NMSC-030, 89 N.M. 305, 551 P.2d 1352;
State v. Ortega
, 1968-NMCA-092, 79 N.M. 707, 448 P.2d 813.
Intent to steal vehicle sufficient.
— An intent to steal the car is an intent to commit a theft "therein." Theft of the car itself may be an offense committed within the vehicle. If one intends to commit in a car acts that accomplish the crime, then one intends to commit the crime in the car. Theft of a car can be accomplished from within the vehicle.
State v. Hernandez
, 1993-NMCA-132, 116 N.M. 562, 865 P.2d 1206, cert. denied, 116 N.M. 801, 867 P.2d 1183.
Intent measured at time of entry.
— A specific intent to commit a felony must exist and may be measured at the time of the claimed unauthorized entry into the home of the prosecutrix.
State v. Elliott
, 1975-NMCA-087, 88 N.M. 187, 539 P.2d 207,
rev'd on other grounds
, 1976-NMSC-030, 89 N.M. 305, 551 P.2d 1352.
Entry without intent not burglary.
— Absent any proof that entry had been made with an intent to commit a felony, the act of prying a lock did not constitute burglary.
State v. Grubaugh
, 1950-NMSC-044, 54 N.M. 272, 221 P.2d 1055.
Intoxication may be shown to negate existence of required intent
in a prosecution for burglary, and where defendant claims absence of intent due to intoxication, the issue of intent is for the jury.
State v. Gonzales
, 1971-NMCA-007, 82 N.M. 388, 482 P.2d 252, cert. denied, 82 N.M. 377, 482 P.2d 241.
Voluntary intoxication as defense.
— Voluntary intoxication is not a defense to a charge of larceny unless defendant was so intoxicated as to be unable to form the necessary intent.
State v. Lucero
, 1962-NMSC-077, 70 N.M. 268, 372 P.2d 837.
Burglary requires that entry be with the specific intent to commit a felony or theft; intoxication may be shown to negate this specific intent.
State v. Ruiz
, 1980-NMCA-123, 94 N.M. 771, 617 P.2d 160.
Burglary does not depend upon actions after the entry,
the crime being complete when there is an unauthorized entry with the intent to commit a felony or theft.
State v. Tixier
, 1976-NMCA-054, 89 N.M. 297, 551 P.2d 987.
Stealing is not necessary element of burglary.
State v. Ford
, 1970-NMCA-061, 81 N.M. 556, 469 P.2d 535.
Proof of theft unnecessary.
— When entry is accomplished with intent to steal it is not a required element of proof to show that any property was actually taken.
State v. Ortega
, 1968-NMCA-092, 79 N.M. 707, 448 P.2d 813.
To prove burglary, the state was not required to prove either that defendant stole something or ownership of any articles stolen.
State v. Gutierrez
, 1971-NMCA-058, 82 N.M. 578, 484 P.2d 1288, cert. denied, 82 N.M. 562, 484 P.2d 1272.
Possession of stolen property immaterial.
— Proof that property was actually taken is not necessary nor is proof of possession of a stolen item.
State v. Wilkerson
, 1972-NMCA-067, 83 N.M. 770, 497 P.2d 981.
To prove burglary, the state was not required to prove defendant's possession of stolen articles.
State v. Ford
, 1970-NMCA-061, 81 N.M. 556, 469 P.2d 535.
Proof of burglary.
— The state is not required to prove dominion, control or possession. Evidence of dominion, control or possession of the stolen property is admissible on the questions of entry and intent.
State v. Hinojos
, 1967-NMCA-003, 78 N.M. 32, 427 P.2d 683.
Possession of tools immaterial.
— Although burglary tools are admissible in evidence in a prosecution for burglary, it is not necessary to have burglary tools in one's possession to violate this section.
State v. Everitt
, 1969-NMCA-010, 80 N.M. 41, 450 P.2d 927.
IV. INDICTMENT AND INFORMATION.
A. IN GENERAL.
Accessory prosecuted as principal.
— Although defendant never entered burglarized building, he was an aider and abettor or he was an accessory as defined in 30-1-13 NMSA 1978 and could therefore be prosecuted as a principal.
State v. Riley
, 1970-NMCA-015, 82 N.M. 298, 480 P.2d 693.
Allegation of ownership unnecessary.
— An allegation or proof of ownership of a building or structure, the subject of a burglary charge, is unnecessary.
State v. Flores
, 1971-NMCA-036, 82 N.M. 480, 483 P.2d 1320.
Ownership for identification.
— This section clearly does not require that ownership of the building or structure entered be alleged, nor is such allegation necessary to charge the offense. Accordingly, except as a means of identification, an allegation or proof of ownership of a building or structure the subject of a burglary charge is unnecessary.
State v. Ford
, 1969-NMCA-092, 80 N.M. 649, 459 P.2d 353.
Model and license of burglarized vehicle.
— Where the essential elements of the crime of burglary of an automobile were established, the model and license of the vehicle were surplusage in the indictment which did not need to be proved, and failure to do so did not constitute reversible error.
State v. Newman
, 1971-NMCA-137, 83 N.M. 165, 489 P.2d 673.
Value of property.
— Under 40-9-6, 1953 Comp., prescribing penalties for breaking and entering into places other than dwelling with intent to commit murder, rape, robbery, larceny or any felony, term "larceny" was not limited to "grand larceny" under 40-45-2, 1953 Comp., and since stealing property of any value was a felony, a value over $50.00 did not have to be specified in the information nor proved in a charge of attempt.
State v. Serrano
, 1964-NMSC-161, 74 N.M. 412, 394 P.2d 262 (decided under former law).
Charge sufficient.
— Charge that defendant "burglarized" an outhouse belonging to a named individual in the nighttime was sufficient to invoke the jurisdiction of the court in that it charged a public offense.
State v. Mares
, 1956-NMSC-031, 61 N.M. 46, 294 P.2d 284 (decided under former law).
B. VARIANCE.
Material variance between places charged and proved.
— Where proof identified burglarized shop as that of Joe Howard, and indictment charged burglary of "the Harvey Cleaners," and there was no showing of identity, there was a material variance.
State v. Salazar
, 1938-NMSC-021, 42 N.M. 308, 77 P.2d 633 (decided under former law).
Variance not jurisdictional.
— Variance between indictment and proof regarding name and address of party and place burglarized was not jurisdictional because it can be cured by verdict of the jury.
State v. Jaramillo
, 1973-NMCA-029, 85 N.M. 19, 508 P.2d 1316, cert. denied, 85 N.M. 5, 508 P.2d 1302, 414 U.S. 1000, 94 S. Ct. 353, 38 L. Ed. 2d 236 (1973) (decided under former law).
Nature of building.
— An indictment was not defective for calling a building where goods were sold a "shop," though witnesses at the trial called it a "store."
State v. Padilla
, 1914-NMSC-012, 18 N.M. 573, 139 P. 143 (decided under former law).
Raising variance.
— Variance between charge and proof regarding nature of building burglarized could not be raised for the first time by motion in arrest of judgment or motion for a new trial.
State v. Mares
, 1956-NMSC-031, 61 N.M. 46, 294 P.2d 284 (decided under former law).
V. EVIDENCE.
A. IN GENERAL.
Ordinarily, burglary must be proved by circumstantial evidence
sufficient to submit the issue to the jury, since such an offense can rarely be proved by witnesses who saw and recognized a defendant in the act of making an unauthorized entry with intent to commit a theft.
State v. Johnson
, 1972-NMCA-082, 84 N.M. 29, 498 P.2d 1372.
Exclusion of every reasonable hypothesis save guilt.
— To support a conviction testimony must do more than raise a strong suspicion of guilt as the evidence and reasonable inferences that flow therefrom must exclude every reasonable hypothesis other than the guilt of the defendant.
State v. Heim
, 1971-NMCA-159, 83 N.M. 260, 490 P.2d 1233.
Circumstantial evidence.
— Where circumstances alone are relied upon by the prosecution, the circumstances must be such as to apply exclusively to defendant, and such as are reconcilable with no other hypothesis than defendant's guilt.
State v. Montano
, 1972-NMCA-021, 83 N.M. 523, 494 P.2d 185.
Specific intent to commit theft
may be proven by inference from established facts and circumstances.
State v. Ortega
, 1968-NMCA-092, 79 N.M. 707, 448 P.2d 813.
Breaking and entering justifies inference.
— In the absence of inconsistent circumstances, proof of unlawful breaking and entry into a building which contains personal property that could be the subject of larceny gives rise to an inference that will sustain a conviction of burglary, grounded in human experience, which justifies the assumption that the unlawful entry was not purposeless, and, in the absence of other proof, indicates theft as the most likely purpose.
State v. Ortega
, 1968-NMCA-092, 79 N.M. 707, 448 P.2d 813.
Presence plus inferences.
— Although presence alone is insufficient to sustain a conviction for burglary when the facts and reasonable inferences therefrom show much more than mere presence, there is substantial evidence to support the conviction.
State v. Sedillo
, 1971-NMCA-003, 82 N.M. 287, 480 P.2d 401.
Unauthorized presence in vehicle.
— A jury might reasonably infer from a defendant's unauthorized presence in a vehicle that he had the necessary intent to commit a felony or theft therein.
State v. Wilkerson
, 1972-NMCA-067, 83 N.M. 770, 497 P.2d 981.
Possession of stolen property not enough.
— Recently stolen property found in the possession of a defendant will not alone support a conclusion of guilt of the offense of burglary unless there is evidence of other circumstances connecting the defendant with the crime charged.
State v. Heim
, 1971-NMCA-159, 83 N.M. 260, 490 P.2d 1233.
Facts pointing unerringly to guilt.
— Where the facts and circumstances do not unerringly point to defendant's guilt of burglary and do not establish inferentially or otherwise that defendant's entry was unauthorized, the judgment and sentence must be reversed.
State v. Slade
, 1967-NMCA-027, 78 N.M. 581, 434 P.2d 700.
Establishing aiding and abetting.
— Aiding and abetting a burglary is established by evidence of a community of purpose or a shared criminal intent in the unlawful undertaking, such that by any of the means of communicating thought defendant incited, encouraged or instigated commission of the offense or made it known that commission of an offense already undertaken had aider's support or approval.
State v. Gonzales
, 1971-NMCA-007, 82 N.M. 388, 482 P.2d 252, cert. denied, 82 N.M. 377, 482 P.2d 241.
B. ADMISSIBILITY.
Character evidence.
— Honesty and truthfulness are pertinent character traits that are admissible under Rule 11-404(A)(1) in a prosecution for solicitation to commit burglary.
State v. Martinez
, 2008-NMSC-060, 145 N.M. 220, 195 P.3d 1232.
Evidence of dominion, control or possession
of stolen property is admissible on the questions of entry and intent.
State v. Hinojos
, 1967-NMCA-003, 78 N.M. 32, 427 P.2d 683.
Evidence of dominion, control or possession of stolen property is admissible on the question of intent.
State v. Montano
, 1972-NMCA-021, 83 N.M. 523, 494 P.2d 185.
Discovery of weapons relevant.
— Where defendant was convicted of burglary as accessory, argument that testimony concerning weapons found in defendant's car after his arrest was irrelevant to issues raised by indictment was without merit.
State v. Gunzelman
, 1973-NMCA-121, 85 N.M. 535, 514 P.2d 54,
overruled on other grounds by
State v. Orosco
, 1992-NMSC-006, 113 N.M. 780, 833 P.2d 1146.
Proving unauthorized entry.
— New Mexico does not restrict the method of proving unauthorized entry and it may be proved by circumstantial evidence.
State v. Mireles
, 1971-NMCA-027, 82 N.M. 453, 483 P.2d 508.
Substantial evidence of intent to commit burglary.
— Where defendant was discovered lying underneath a van; next to defendant was a plastic container positioned under the van to catch fuel dripping from the gas tank of the van; defendant admitted that defendant had used a nail to create a hole in the tank so that gas could escape; and the owner of the van had not abandoned the van and had not given defendant permission to enter or remove gas from the van, there was substantial evidence to support the finding that defendant possessed the intent necessary to commit burglary.
State v. Muqqddin
, 2010-NMCA-069, 148 N.M. 845, 242 P.3d 412, cert. granted, 2010-NMCERT-008, 148 N.M. 943, 242 P.3d 1289.
C. SUFFICIENCY.
Substantial evidence of intent to commit burglary.
— Where defendant was discovered lying underneath a van; next to defendant was a plastic container positioned under the van to catch fuel dripping from the gas tank of the van; defendant admitted that defendant had used a nail to create a hole in the tank so that gas could escape; and the owner of the van had not abandoned the van and had not given defendant permission to enter or remove gas from the van, there was substantial evidence to support the finding that defendant possessed the intent necessary to commit burglary.
State v. Muqqddin
, 2010-NMCA-069, 148 N.M. 845, 242 P.3d 412, cert. granted, 2010-NMCERT-008, 148 N.M. 942, 242 P.3d 1288.
Inference of intent permissible.
— Defendant's motion for a directed verdict was properly denied because the jury could have properly inferred that defendant was the person who burglarized the building, and that the jacket and knife found in the vent, therefore belonged to defendant.
State v. Barragan
, 2001-NMCA-086, 131 N.M. 281, 34 P.3d 1157.
Inference of intent to commit felony.
— Evidence that a store's burglary alarm system was triggered, that police officers responded within a minute after being called, that there was a four-by-eight-inch hole in a garage door near the opening mechanism, that defendant was found hiding in tires outside the building near the door, that the piece of door which had been removed in making the hole was found in the same area and that the store had been closed at 5:30 p.m., while the alarm went off shortly after 10:00 p.m. permitted an inference that defendant intended to commit a felony or theft inside the store.
State v. Tixier
, 1976-NMCA-054, 89 N.M. 297, 551 P.2d 987.
Inference of criminal intent.
— Victim's house was broken into; defendant helped carry stolen items away over four foot fence in back of house; he was recognized by the victim's neighbor while carrying some of the stolen items; some stolen items were concealed; and defendant fled when discovered, although subsequently returned to the vicinity of the victim's house. These facts were evidence sufficient to sustain an inference of criminal intent.
State v. Peden
, 1973-NMCA-095, 85 N.M. 363, 512 P.2d 691.
Inference of intent.
— Where defendant's companion completed crime of burglary by an unauthorized entry with the necessary intent, and defendant knew this fact, was present and participated, his intent could be inferred from his acts.
State v. Riley
, 1970-NMCA-015, 82 N.M. 298, 480 P.2d 693.
Where defendant was caught in a public schoolhouse on a Sunday afternoon by two police officers and upon being searched for weapons several items taken from desk or storage cabinet in principal's office were discovered, the evidence substantially supported a reasonable inference of defendant's intent to commit a theft in the schoolhouse which he had entered without authorization.
State v. Lujan
, 1970-NMCA-087, 82 N.M. 95, 476 P.2d 65.
In prosecution for burglary, larceny and unlawful taking of a vehicle, evidence of the time factors, distances, observations of defendants, locations and possession of stolen goods pointed unerringly to defendants and excluded every reasonable hypothesis other than guilt.
State v. Sanchez
, 1971-NMCA-065, 82 N.M. 585, 484 P.2d 1295.
Breaking of window indicative of intent.
— Jury, after they found that defendant shattered the grocery store window, validly inferred that window was broken in an attempt to enter and unlawfully take property from inside the store, and that he acted with criminal intent.
State v. Serrano
, 1964-NMSC-161, 74 N.M. 412, 394 P.2d 262.
Intent absent.
— Testimony by the prosecutrix that she engaged in sexual intercourse with defendant, along with his acquittal on rape charge, suggests that jury found that the sexual intercourse took place with consent of the prosecutrix and that defendant did not enter her home with intent to commit rape, and thus the evidence was insufficient to sustain a conviction for burglary.
State v. Elliott
, 1975-NMCA-087, 88 N.M. 187, 539 P.2d 207,
rev'd on other grounds
, 1976-NMSC-030, 89 N.M. 305, 551 P.2d 1352.
Insufficient evidence of intent to commit a theft or criminal damage to property.
— Where defendant was convicted of residential burglary based on DNA evidence found in the burglarized house, there was insufficient evidence to permit a rational jury to find the essential facts to establish each element of the crime of residential burglary beyond a reasonable doubt, because although there was evidence that defendant had entered the property without authorization, the state, without presenting any evidence linking defendant to the stolen items or the property damage, failed to establish, either directly or by circumstantial evidence, that defendant entered the dwelling with the intent to commit a theft or criminal damage to property when inside.
State v. Ledbetter
, 2020-NMCA-046.
Proof beyond reasonable doubt.
— Where unlawful entry and a description of items stolen were proven beyond a reasonable doubt, this was sufficient to sustain the conviction under this statute.
State v. Baca
, 1974-NMCA-022, 86 N.M. 144, 520 P.2d 872.
Guilt as only reasonable hypothesis.
— Defendant's flight when officers arrived indicated consciousness of guilt, and together with fact that he came to store with intent of breaking in and gave a false name when arrested, absent an explanation of his reasons or motive, permitted an inference of guilt, excluding every other reasonable hypothesis.
State v. Gonzales
, 1971-NMCA-007, 82 N.M. 388, 482 P.2d 252, cert. denied, 82 N.M. 377, 482 P.2d 241.
Hypothesis in defense.
— Defendant's hypothesis that actual burglar had been frightened away by appearance of defendant since there was no evidence introduced concerning fingerprints, defendant was not wearing gloves and officers found nothing on defendant classified as burglar tools, was not reasonable in the light of the jury verdict which necessarily determined that defendant was inside burglarized apartment, and in light of undisputed evidence of a torn screen, open door and "mess" inside the apartment.
State v. Madrid
, 1972-NMSC-016, 83 N.M. 603, 495 P.2d 383.
Unauthorized entry established.
— Circumstantial evidence may be used to establish an unauthorized entry, and evidence showing that defendant and companions went to liquor store with intent to break in, taking a sledgehammer, that windows were broken, that the men fled the scene and that bottles of liquor were missing, pointed unerringly to an unauthorized entry.
State v. Gonzales
, 1971-NMCA-007, 82 N.M. 388, 482 P.2d 252, cert. denied, 82 N.M. 377, 482 P.2d 241.
Slight penetration sufficient.
— Evidence that an unidentified instrument penetrated one-half inch inside a building was sufficient evidence of entry to sustain a burglary conviction, since any penetration, however slight, of the interior space is sufficient.
State v. Tixier
, 1976-NMCA-054, 89 N.M. 297, 551 P.2d 987.
Evidence supporting conviction.
— Evidence that a fingerprint lifted from a coke machine which had been broken into during a burglary was the same as that on defendant's fingerprint card, on the basis of a ten point comparison taken from defendant under controlled circumstances, and that although gas station operator testified that his son had access to key to machine he also stated that to his knowledge his son never opened it, was sufficient to support conviction.
State v. Douglas
, 1974-NMCA-087, 86 N.M. 665, 526 P.2d 807, cert. denied, 86 N.M. 656, 526 P.2d 798.
Sufficient evidence.
— Where store manager testified that he had checked the building just before he left the previous evening and that it was securely locked, that a window found broken shortly after defendant's apprehension had not been broken the evening before and that no one, including the defendant, was authorized to enter the store after closing time, and evidence showed that defendant, seen near the store in the early morning when all the businesses were closed, ran when a police officer attempted to stop him for questioning, dropped two bags which contained merchandise from the store, evidence was sufficient, albeit circumstantial, for the jury to infer that defendant committed burglary.
State v. Lauderdale
, 1973-NMCA-035, 85 N.M. 157, 509 P.2d 1352, cert. denied, 85 N.M. 144, 509 P.2d 1339.
Evidence, including positive identification of defendant and testimony as to his presence in cab of burglarized pick-up, along with business papers kept in truck which were found on the ground near the pick-up and in the alley near which the defendant was apprehended, sustained burglary conviction.
State v. Wilkerson
, 1972-NMCA-067, 83 N.M. 770, 497 P.2d 981.
Where evidence was clear that the residence had been entered with an intent to commit theft as various items of personal property had been stolen and homeowner testified that to gain entrance the window would have had to be forced open, presence of defendant's prints on inside portion of the window was sufficient to point to defendant as the one who entered the house and stole the property.
State v. Mireles
, 1971-NMCA-027, 82 N.M. 453, 483 P.2d 508.
Evidence is sufficient to support a defendant's burglary conviction where the defendant, a security guard and associate member of a club, makes an unauthorized entry into the club after closing hours by breaking the club's door, then breaking into a bar cabinet and slot machine.
State v. Carter
, 1979-NMCA-117, 93 N.M. 500, 601 P.2d 733, cert. denied, 93 N.M. 683, 604 P.2d 821.
Where defendant admitted that he and accomplice "ransacked" the victim's residence and removed at least two pistols and three long firearms, this is sufficient evidence for the conviction of burglary.
State v. Lopez
, 2005-NMSC-036, 138 N.M. 521, 123 P.3d 754,
overruled on other grounds by
State v. Frawley, 2007-NMSC-057, 143 N.M. 7, 172 P.3d 144.
"Dwelling house" construed.
— To determine whether a structure constitutes a dwelling house, the court considers the evidence presented regarding the physical characteristics of the structure to determine whether it is a type of structure customarily used for living quarters and in which possessory and privacy interests of habitation should be protected, and examines whether the structure was actually used for living quarters, whether its purpose was for habitation, and whether its use as living quarters was sufficient to warrant protection of the heightened privacy and possessory interests of habitation.
State v. Shelby
, 2021-NMCA-064, cert. denied.
Sufficient evidence of burglary of a "dwelling house".
— Where defendant was convicted of burglary of a dwelling, larceny over $2,500, and criminal damage to property over $1,000, and where defendant claimed that his conviction for burglary of a dwelling was not supported by sufficient evidence because the interior of the house at issue was under construction, it lacked electricity and running water, and the evidence did not show that the owner "customarily used" the house "as living quarters" under the definition of "dwelling house," as set out in UJI 14-1631 NMRA, the evidence sufficiently established that the structure entered was a dwelling house within the meaning and purpose of the burglary statute and UJI 14-1631, because the state presented evidence that the structure was a house with an enclosed, finished exterior, the house was used for habitation in a regular, yet intermittent, way, and the apparent purpose of the house was for habitation.
State v. Shelby
, 2021-NMCA-064, cert. denied.
Sufficient evidence of burglary of a vehicle.
— Where surveillance video evidence showed a dark-colored pickup truck enter a motel parking lot in the early morning hours and showed a person identified by the arresting officer as defendant forcibly entering and removing items from two vehicles, and where, during a custodial interview, defendant made statements to the effect that he did not remember what he took and did not know the whereabouts of the items taken from the vehicles, and where the arresting officer testified that he observed defendant forcibly enter two other vehicles at a different motel, there was sufficient evidence to support defendant's convictions on four counts of burglary of a vehicle.
State v. Sweat
, 2017-NMCA-069, cert. denied.
Sufficient evidence of conspiracy to commit burglary.
— Where defendant, a former employee of a motel, asked the motel desk clerk to attend to an internet problem in the motel by implying that he was a motel guest, which he was not, and where defendant remained in the lobby while his co-conspirator climbed over the desk clerk's counter, broke the lock on a cash drawer and removed cash, and where defendant immediately followed the co-conspirator out of the motel lobby after the co-conspirator took the cash, there was sufficient evidence for a rational trier of fact to infer that defendant, as a former employee of the motel, knew the location of the cash drawer, that asking the desk clerk to reset the wireless router would require the clerk to be away from the office for a sufficient amount of time to create an opportunity to steal the cash and escape without notice, and that defendant and his accomplice agreed and intended to commit the crime of burglary.
State v. Mestas
, 2016-NMCA-047.
Circumstantial evidence sufficient.
— Facts regarding the defendants' actions and the surrounding circumstances provided sufficient evidence from which a jury could infer that defendants intended to break into a building and commit a theft therein.
State v. Jennings
, 1984-NMCA-051, 102 N.M. 89, 691 P.2d 882, cert. quashed, 102 N.M. 88, 691 P.2d 881.
Unexplained possession with other circumstances.
— While unexplained possession of goods belonging to another does not raise presumption that a larceny has been committed and that the possessor is a thief, additional evidence being necessary to establish the corpus delicti, nevertheless additional evidence, consisting of the fact that a robbery had been committed, the early hour of the morning, the lack of identification, the giving of a false name and defendant's statement that he was on his way home which was in the southwest quadrant of the city when he was walking north, was sufficient to sustain a conviction for burglary.
State v. Rivera
, 1973-NMCA-145, 85 N.M. 723, 516 P.2d 694.
Sufficiency of evidence.
— Evidence that defendant possessed recently stolen property which he acquired by theft, together with evidence of defendant's presence at the scene near the time of the crime with a person who knew the precise location of the property, permitted the inference that defendant stole the guns during an unauthorized entry of owner's residence, and was sufficient to sustain his conviction for burglary.
State v. Jordan
, 1975-NMCA-102, 88 N.M. 230, 539 P.2d 620.
Evidence, though partly circumstantial, supported conviction for burglary, where soda pop of kind and amount stolen was found in possession of defendant near the place where pop had been stolen, defendant had prevailed upon acquaintances to take him to the vicinity of the storage shed for the purpose of getting some pop, when being investigated defendant admitted the theft, and a footprint similar to defendant's was found in the burglarized shed.
State v. Waits
, 1966-NMSC-162, 76 N.M. 630, 417 P.2d 439.
Aiding and abetting shown.
— Although defendant's witness testified that defendant was unaware that witness was removing stereo tape deck from automobile, where evidence showed that defendant and witness looked into another car before witness broke into the burglarized car and that defendant leaned on the door of the burglarized car and was "looking both ways as if observing for something," this evidence was sufficient to sustain defendant's conviction as an aider and abettor under this section.
State v. Sandoval
, 1972-NMCA-038, 83 N.M. 599, 495 P.2d 379.
Evidence insufficient.
— Although similarity between footprints, and tire prints, along with defendant's locations, actions and statements, created a suspicion that he committed the offense charged, it could not be said that there were not other reasonable hypotheses which permitted a finding of his innocence and hence circumstantial evidence solely relied upon by state, failed to meet the standard required.
State v. Seal
, 1965-NMSC-154, 75 N.M. 608, 409 P.2d 128;
State v. Waits
, 1966-NMSC-162, 76 N.M. 630, 417 P.2d 439;
State v. Sharp
, 1967-NMSC-169, 78 N.M. 220, 430 P.2d 378;
State v. Williamson
, 1968-NMSC-033, 78 N.M. 751, 438 P.2d 161, cert. denied, 393 U.S. 891, 89 S. Ct. 212, 21 L. Ed. 2d 170 (1968);
Nance v. State
, 1969-NMCA-018, 80 N.M. 123, 452 P.2d 192.
Where at best the state showed that defendant had constructive possession of certain stolen jewelry by virtue of occupying along with another individual the same room in which it was found, but there was no evidence showing or tending to show that he had knowledge, control or voice in the power of disposal of the jewelry, evidence was insufficient to permit issue of defendant's guilt on burglary charge to go to the jury.
State v. Romero
, 1960-NMSC-047, 67 N.M. 82, 352 P.2d 781.
Raising insufficiency of evidence.
— On appeal from denial of post-conviction relief, petitioner's contentions that he should not have been charged with and convicted of aggravated burglary, that the state failed to prove criminal intent and that he was intoxicated at the time of the offense and could not have had the requisite intent, not having been raised on direct appeal, did not provide a basis for post-conviction relief.
Andrada v. State
, 1971-NMCA-184, 83 N.M. 393, 492 P.2d 1010.
Where in a prosecution for burglary the question of sufficiency of the evidence was not presented to the trial court, defendant could not demand a review of the evidence as a matter of right, but in case at hand appellate court would examine the record to determine if fundamental error was committed.
State v. Sedillo
, 1969-NMCA-107, 81 N.M. 47, 462 P.2d 632, cert. denied, 81 N.M. 40, 462 P.2d 625.
VI. INSTRUCTIONS.
Instruction on specific intent required.
— Since the crime of burglary is a crime requiring a specific mens rea, an instruction on specific intent or specific mens rea is required.
State v. Gunzelman
, 1973-NMSC-055, 85 N.M. 295, 512 P.2d 55,
overruled on other grounds by
State v. Orosco
, 1992-NMSC-006, 113 N.M. 780, 833 P.2d 1146.
Failure to give instruction
concerning criminal intent is jurisdictional and may be raised for the first time on appeal.
State v. Gunzelman
, 1973-NMSC-055, 85 N.M. 295, 512 P.2d 55,
overruled on other grounds by
State v. Orosco
, 1992-NMSC-006, 113 N.M. 780, 833 P.2d 1146.
Language of statute adequate.
— Since this section defines the element of intent constituting the crime of burglary, an instruction which follows the language of the statute adequately instructs the jury on the specific criminal intent required.
State v. Gunzelman
, 1973-NMSC-055, 85 N.M. 295, 512 P.2d 55,
overruled on other grounds by
State v. Orosco
, 1992-NMSC-006, 113 N.M. 780, 833 P.2d 1146.
Sufficiency of instruction.
— Instruction that any person who, without authorization, enters a dwelling house with intent to commit any felony or theft therein is guilty of burglary of a dwelling house was sufficient on the element of criminal intent.
State v. Baca
, 1973-NMCA-054, 85 N.M. 55, 508 P.2d 1352.
Additional instruction on general criminal intent was unnecessary
in prosecution for burglary as a person is presumed to intend the logical consequences of his actions.
State v. Gunzelman
, 1973-NMSC-055, 85 N.M. 295, 512 P.2d 55,
overruled on other grounds by
State v. Orosco
, 1992-NMSC-006, 113 N.M. 780, 833 P.2d 1146.
Intoxication instruction properly refused.
— Requested instruction telling jury to acquit defendant if he "did not have the intent to commit the unlawful act of burglary as a result of intoxication" was properly refused because of its wording, which would have required jury to accept, as a fact, the matter of intoxication which was for the jury to decide.
State v. Gonzales
, 1971-NMCA-007, 82 N.M. 388, 482 P.2d 252, cert. denied, 82 N.M. 377, 482 P.2d 241.
Presumption of innocence adequately covered.
— In prosecution for burglary, where instructions were given on the presumption of innocence and the burden of proof, court's refusal to instruct that there was no presumption that defendant was an accessory and that he did not have the burden of proving that he was not an accessory was not error.
State v. Gunzelman
, 1973-NMCA-121, 85 N.M. 535, 514 P.2d 54,
overruled on other grounds by
State v. Orosco
, 1992-NMSC-006, 113 N.M. 780, 833 P.2d 1146.
Submission of lesser offense unnecessary.
— Offense of unlawfully carrying a deadly weapon is neither a degree of burglary, nor the higher degree of aggravated burglary, and not being an included offense, trial court did not err in refusing to submit to the jury the offense of unlawfully carrying a deadly weapon as a lesser included offense.
State v. Andrada
, 1971-NMCA-033, 82 N.M. 543, 484 P.2d 763, cert. denied, 82 N.M. 534, 484 P.2d 754.
Instruction on accomplice's testimony.
— In trial for burglary, instruction that an accused may be convicted upon the testimony of an accomplice, even though it is uncorroborated, was proper.
State v. Baca
, 1973-NMCA-054, 85 N.M. 55, 508 P.2d 1352.
Instruction misstating victim's name and address.
— Error in instruction misstating name and address of burglary victim, to which defendant did not object, was not preserved for review and did not constitute fundamental error.
State v. Jaramillo
, 1973-NMCA-029, 85 N.M. 19, 508 P.2d 1316, cert. denied, 85 N.M. 5, 508 P.2d 1302, 414 U.S. 1000, 94 S. Ct. 353, 38 L. Ed. 2d 236 (1973).
Failure to request instruction.
— Counsel's failure to request an instruction to the effect that intoxication would relieve the defendant of criminal responsibility if he were unable to form the criminal intent required for the commission of the crime of burglary may have been no more than bad strategy on the part of counsel, so that it could not be said, as a matter of law, that representation was so inadequate as to deprive him of his constitutional right to effective assistance of counsel.
State v. Samora
, 1971-NMCA-001, 82 N.M. 252, 479 P.2d 532.
Attorney general opinions.
— The phrase "or any other felony," in former 40-9-6, 1953 Comp., dealing with crime of breaking and entering into places other than dwellings, was indicative that this section of the statute only applied to a breaking and entering with intent to commit a felony. 1955 Op. Att'y Gen. No. 55-6115.
Law reviews.
— For article, "The Confusing Law of Criminal Intent in New Mexico," see 5 N.M.L. Rev. 63 (1974).
For annual survey of New Mexico law relating to criminal law, see 12 N.M.L. Rev. 229 (1982).
For annual survey of New Mexico law relating to criminal procedure, see 12 N.M.L. Rev. 271 (1982).
For annual survey of New Mexico law relating to criminal law, see 13 N.M.L. Rev. 323 (1983).
For annual survey of New Mexico criminal law and procedure, 19 N.M.L. Rev. 655 (1990).
Am. Jur. 2d, A.L.R. and C.J.S. references.
— 13 Am. Jur. 2d Burglary §§ 1 to 14.
Opening closed but unlocked door as breaking which will sustain charge of burglary or breaking and entering, 23 A.L.R. 112.
Burglary without breaking, 23 A.L.R. 288.
Outbuilding or the like as part of "dwelling house," 43 A.L.R.2d 831.
Gambling or lottery paraphernalia as subject of burglary, 51 A.L.R.2d 1396.
Night, sufficiency of showing that burglary was committed at, 82 A.L.R.2d 643.
Entry through partly opened door or window as burglary, 70 A.L.R.3d 881.
Maintainability of burglary charge, where entry into building is made with consent, 58 A.L.R.4th 335.
What is "building" or "house" within burglary or breaking and entering statute, 68 A.L.R.4th 425.
Burglary, breaking, or entering of motor vehicle, 72 A.L.R.4th 710.
Minor's entry into home of parent as sufficient to sustain burglary charge, 17 A.L.R.5th 111.
Use of fraud or trick as "constructive breaking" for purpose of burglary or breaking and entering offense. 17 A.L.R.5th 125.
12A C.J.S. Burglary §§ 1 to 38.