State v. Sanchez , 105 N.M. 619 ( 1987 )

APODACA, Judge,

specially concurring.

I specially concur with the majority to express some additional concerns raised by these two appeals. It is true, as the majority suggests, that the trend in American jurisprudence has been to expand considerably the definition of burglary under modern criminal statutes. But I believe there is a risk involved in stepping too far afield and I am concerned we may be approaching the limit of our statute’s application. The court in Arabie v. State, 699 P.2d 890 (Alaska App.1985), cited by the majority, noted the potential problems with a broader definition of burglary if the distinction between burglary and other crimes (such as shoplifting) is blurred. Although we need not address what application our interpretation of the statute would have in every factual situation, I suggest these potential problems may be curbed by our adopting the two definitional standards I discuss below.

An essential element of the crime of burglary is an unauthorized entry. NMSA 1978, § 30-16-3 (Repl.Pamp.1984); State v. Ortiz, 92 N.M. 166, 584 P.2d 1306 (Ct.App.1978). If a structure is open to the public, then an entry into that structure is deemed authorized. State v. Rogers, 83 N.M. 676, 496 P.2d 169 (Ct.App.1972). I agree with the majority’s determination that where a building is partially open to the public, a defendant may be convicted of burglary if his entry exceeds the scope of the invitation to the public. However, I am troubled because the law in New Mexico provides no guidance on how one is to determine the scope of the invitation.

To be convicted of burglary, a defendant must know his entry was not authorized. State v. Ruiz, 94 N.M. 771, 617 P.2d 160 (Ct.App.1980). When a building is at least partially open to the public, the prosecution must show defendant knew that his entry into the particular portion of the building was not within the scope of the public invitation. Even if a defendant is not actually authorized to enter, this fact alone does not unequivocally prove defendant knew he was unauthorized. The requisite knowledge must usually be inferred from the circumstances of defendant's actions. But when the building is at least in part open to the public, how is the fact finder supposed to measure the evidence presented by the prosecution? How far does the scope of the public invitation extend? The answers lie in the standards I am proposing.

I believe the Oregon statutory definition of “open to the public,” which is part of that state’s burglary statute, provides an appropriate guide. “‘Open to the public’ means premises which by their physical nature, function, custom, usage, notice or lack thereof or other circumstances at the time would cause a reasonable person to believe that''no permission to enter or remain is required.” Or.Rev.Stat. § 164.-205(4) (1971). In this connection, I am particularly disturbed by the sufficiency of the evidence with respect to defendant Sanchez. I realize a jury found otherwise, but I, myself, am not entirely certain the state met its burden in showing that the hospital basement and the office entered by defendant were “prohibited space” to the public. A mere push of the “B” button on an elevator and a short walk down an open corridor would get anyone there.

As a guide to the bench and the bar, I would expressly adopt the Oregon standard as the law in New Mexico. Colorado and Missouri have already done so. People v. Bozeman, 624 P.2d 916 (Colo.Ct.App.1980); State v. McGinnis, 622 S.W.2d 416 (Mo.Ct.App.1981).

There is one additional concern I find necessary to address in light of the broadness of our burglary statute. Inasmuch as the decision in these two consolidated appeals holds that under our statute, a person may be convicted of burglary committed within a building open to the public, I submit the court should expand on its definition of a “structure,” by holding there is a violation of “prohibited space” whenever a person enters “any separately secured, separately delineated portion of another * * structure.” State v. Shears, 47 Ohio Misc. 27, 30, 352 N.E.2d 660, 663 (1975) (emphasis added).

By applying these definitional standards, we can address potential problems arising from the historical trend — an expanding application of our burglary statute. The incorporation of these standards as uniform jury instructions may be an appropriate avenue to consider and would assure us the standards are not only known to, but applied by, a jury. I am not advocating that we judicially limit prosecutions under our burglary statute, but only that we take care we do not blur those often fine-line junctures of criminal elements, where one crime ends and another begins. Ultimately, it is the prosecutor who will discretionarily determine what criminal charge to bring against a particular defendant; where one crime does not fit, another may. But let us not lose sight of the constitutional risks involved in applying a criminal statute with too broad a brush.

I concur in the affirmances because I am satisfied that under the above standards, there was sufficient evidence presented to support the convictions.