State v. Office of the Public Defender Ex Rel. Muqqddin , 2 N.M. 433 ( 2012 )

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integrity of this document
New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 16:44:29 2012.09.19
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number: 2012-NMSC-029Filing Date: August 16, 2012
Docket No. 32,430
STATE OF NEW MEXICO,
Plaintiff-Respondent,
v.
OFFICE OF THE PUBLIC DEFENDER
ON BEHALF OF ABDUL MUQQDDIN, DECEASED,
Defendant-Petitioner.
and
Docket No. 32,632
STATE OF NEW MEXICO,
Plaintiff-Respondent,
v.
EDGAR DOMINGUEZ-MERAZ,
Defendant-Petitioner.
ORIGINAL PROCEEDINGS ON CERTIORARI
Carl J. Butkus and Jacqueline D. Flores, District Judges
Jacqueline L. Cooper, Chief Public Defender
Adrianne R. Turner, Assistant Appellate Defender
for Petitioners
Gary K. King, Attorney General
Margaret E. McLean, Assistant Attorney General
Andrew S. Montgomery, Assistant Attorney General
1
Farhan A. Khan, Assistant Attorney General
Santa Fe, NM
for Respondent
OPINION
BOSSON, Justice.
{1} These consolidated cases ask this court to address for the first time the outer limits
of New Mexico’s burglary statute, NMSA 1978, Section 30-16-3 (1971). In more than 40
years, this Court has issued only one burglary opinion and even then on a somewhat
tangential issue. See State v. Gonzales, 78 N.M. 218, 430 P.2d 376 (1967). By contrast,
over that same time our Court of Appeals has issued numerous opinions that, for the most
part, have expanded significantly the reach of the burglary statute, an expansion that has
occurred without any parallel change in the statute. The opinions before us now illustrate
the unprecedented scope of that expansion, which presents this Court with an opportunity
to undertake a review of our burglary jurisprudence. We begin with burglary’s common-law
origins and the principles that inspired the development of that crime both at common law
and later by legislative enactment. We look behind the words of the burglary statute,
searching for the thoughts that gave birth to the text. Ultimately, we conclude that our case
law has gone astray, and that we must alter our course, beginning with the two opinions
before us. Accordingly, we reverse.
BACKGROUND
{2} As burglary has evolved from its common law origins, it has become increasingly
difficult to discern general principles that can be applied in all cases. What has been created
appears to be more of a patchwork body of law that applies to the particular situation
presented rather than guiding principles to be applied to all cases. This Court is not without
its share of responsibility, as we have repeatedly declined to grant certiorari to address such
issues as they arose. This does not mean, however, that we must continue down that path.
{3} As the crime of burglary has continued to expand, it seems at times to have
transformed into an enhancement for any crime committed in any type of structure or
vehicle, as opposed to a punishment for a harmful entry. In the past, the typical burglary
scenario involved a home invasion, and the crime was intended to protect occupants against
the terror and violence that can occur as a result of such an entry. People v. Davis, 958 P.2d
1083, 1089 (Cal. 1998). Yet today it has become more common to add a burglary charge to
other crimes where the entry itself did not create or add any potential of greater harm than
the completed crime. Our Legislature has never expressed an intent that burglary be used
as an enhancement, nor has it clearly authorized the steady progression of judicial expansion
of burglary as seen over the past 40 years. After setting forth the undisputed facts underlying
2
each conviction, we proceed to examine the evolution of burglary in New Mexico to inform
our analysis of whether these two cases and others like them truly fit within the statutory
meaning of burglary.
Facts
{4} The facts of each case are largely undisputed, only the legal effects of those facts are
at issue.
Abdul Muqqddin
{5} In the early morning hours of August 21, 2005, Albuquerque Police Officer John
Friedfertig was responding in his squad car to a loud noise call. En route, Officer Friedfertig
noticed some suspicious, loud banging coming from an alley. Officer Friedfertig stopped
to investigate and found Defendant Abdul Muqqddin1 lying under a van. Officer Friedfertig
saw a red gas can under the van with gasoline dripping from the van’s gas tank into the gas
can. After being placed into custody, Defendant Muqqddin admitted using a nail or a piece
of metal to puncture the gas tank and take the gas.
{6} Defendant Muqqddin was charged with five separate counts for his actions-auto
burglary; criminal damage to property; possession of burglary tools; larceny; and concealing
identity-and a jury trial was held. At the close of the State’s case, Defendant Muqqddin
moved for a directed verdict on all charges. The district court granted the motion in regard
to the possession of burglary tools charge, but denied the motion in regard to the other
charges. The jury returned a guilty verdict on all the remaining charges, including auto
burglary.
{7} Defendant Muqqddin appealed to the New Mexico Court of Appeals, “arguing that
puncturing the [g]as tank did not constitute an ‘entry’ under the burglary statute.” The Court
of Appeals analogized the facts presented to the facts of both State v. Rodriguez, 101 N.M.
192, 679 P.2d 1290 (Ct. App. 1984), and State v. Reynolds, 111 N.M. 263, 804 P.2d 1082(Ct. App. 1990), involving an entry into the open bed of a pickup truck and the engine
compartment of a vehicle respectively. State v. Muqqddin, 2010-NMCA-069, ¶ 8, 148 N.M.
845, 242 P.3d 412. The Court, relying primarily on those two prior cases, reasoned that “[a]
fuel tank—attached as it is, to a vehicle—is unquestionably a part of that vehicle . . . . Any
penetration of a vehicle’s perimeter is thus a penetration of the vehicle itself.” Id. ¶ 11. The
Court then held that “Defendant in this case reached into the fuel tank, albeit via an
instrument, in order to remove fuel,” which is sufficient to support a conviction for burglary.
1
Since this case was appealed, Defendant Muqqddin passed away and the Public
Defender’s Office was substituted as the defendant in his case. In keeping with the
convention of the briefing, we will continue to refer to the defendant in this case as
Defendant Muqqddin.
3
Id.
{8} The Court of Appeals also rejected Defendant Muqqddin’s reliance on out-of-state
authority, most notably R.E.S. v. State, 396 So. 2d 1219 (Fla. Dist. Ct. App. 1981). In R.E.S.,
the Florida District Court of Appeal rejected the idea that siphoning gas amounts to burglary
under Florida law. Id. at 1220. That Court reasoned that all prior Florida vehicle burglary
cases “involved the entry into a compartment of a vehicle which can be entered either wholly
or partially by a person; e.g., engine and passenger compartments, trunks, etc.” Id. The
Muqqddin Court distinguished that case by stating that while “burglary in Florida
contemplates the entry of a vehicle compartment large enough to accommodate at least a part
of a person” but it is “[n]ot so in New Mexico, where a slight entry by use of an instrument
is sufficient.” 2010-NMCA-069, ¶ 13.
Edgar Dominguez-Meraz
{9} Before his trial, Defendant Edgar Dominguez-Meraz filed a motion to dismiss the
burglary charge filed against him. He was charged with burglary for allegedly removing the
two rear wheels of a vehicle and the lug nuts of the front wheels. The motion acknowledges
that Defendant Dominguez-Meraz was one of two individuals apprehended near a vehicle
missing two rear tires and the lug nuts from the front wheels. He argued, however, even if
those facts were true, as a matter of law he could not be convicted of burglary for those
actions because there was no entry as required by the statute. The district court agreed with
Defendant Dominguez-Meraz and ordered the burglary charge dismissed.
{10} The State appealed the dismissal to the New Mexico Court of Appeals. In a
memorandum opinion relying on Muqqddin, 2010-NMCA-069, the Court of Appeals
reversed. State v. Dominguez-Meraz, No. 30,382, slip op. at 1 (N.M. Ct. App. Sept. 15,
2010). The Court relied on the same language quoted above from Muqqddin, that “[a] fuel
tank . . . is unquestionably a part of that vehicle . . . . Any penetration of a vehicle’s
perimeter is thus a penetration of the vehicle itself.” Dominguez-Meraz, No. 30,382, slip op.
at 1 (quoting Muqqddin, 2010-NMCA-069, ¶ 11.).
{11} Again, the Court declined to follow some of the same out-of-state authorities
presented in Muqqddin. Id. The Court declined to follow Drew v. State, 773 So.2d 46 (Fla.
2000), which held that the removal of hubcaps and tires from a vehicle is not burglary,
concluding that “Florida’s interpretation of its burglary statute [is] unpersuasive.”
Dominguez-Meraz, No. 30,382, slip op. at 1. Again, the Court held that “in New Mexico a
slight entry by use of an instrument is sufficient” and as a result the “removal of a vehicle’s
wheels is sufficient to constitute burglary in violation of Section 30-16-3(B).” Dominguez-
Meraz, No. 30,382, slip op. at 1 (internal quotation marks and citations omitted).
Proceedings Before This Court
{12} Before this Court, both parties argued primarily over whether each defendant’s
4
actions amounted to an “entry” under New Mexico law. In addition, we asked the parties
for additional briefing addressing NMSA 1978, Section 30-16D-5 (2009), Injuring or
Tampering with a Motor Vehicle, and whether the Legislature intended to punish the
conduct presented in the present cases under that statute. For the reasons that follow, we
hold that a vehicle’s gas tank and wheel wells do not constitute a protected space under
Section 30-16-3 and as a result cannot be burglarized under the statute as presently drafted.
DISCUSSION
Standard of Review
{13} This case requires us to construe New Mexico’s burglary statute, Section 30-16-3.
Accordingly:
[s]tatutory construction is a matter of law we review de novo. Our primary
goal is to ascertain and give effect to the intent of the Legislature. In doing
so, we examine the plain language of the statute as well as the context in
which it was promulgated, including the history of the statute and the object
and purpose the Legislature sought to accomplish. We must take care to
avoid adoption of a construction that would render the statute’s application
absurd or unreasonable or lead to injustice or contradiction.
State v. Nick R., 2009-NMSC-050, ¶ 11, 147 N.M. 182, 218 P.3d 868 (internal quotations
and citations omitted).
Section 30-16-3 reads as follows
[b]urglary consists of the unauthorized entry of any vehicle, watercraft,
aircraft, dwelling or other structure, moveable or immovable, with the intent
to commit any felony or theft therein.
The statute also divides the crime into different grades, with the entry of a dwelling being
a third degree felony while entry into any of the other enumerated objects being a fourth
degree felony. Section 30-16-3(A) & (B).
{14} As a crime, burglary “had its origin in early Saxon times.” Minturn T. Wright III,
Statutory Burglary—The Magic Of Four Walls And A Roof, 100 U. Pa. L. Rev. 411, 411
(1951). The centuries have not been kind to burglary, however, and the modern statutory
version, at least on its surface, bears little resemblance to its common-law predecessor. See
id. at 415. What follows, first discusses the history of burglary, beginning with the common
law and then codification in New Mexico, then explains its expansion, and finally, applies
our interpretation to the facts of the present case.
A Brief History Of Burglary
5
{15} At common law, burglary contained six elements: “(1) breaking and (2) entering (3)
a dwelling house (4) of another (5) in the nighttime (6) with the intent to commit a felony
therein.” Rodriguez, 101 N.M. at 193, 679 P.2d at 1291. It is actually a peculiar type of
attempt law, since “all the required elements merely comprise a step taken toward the
commission of some other offense.” 3 Wayne R. LaFave, Substantive Criminal Law §
21.1(g), at 221-22 (2d ed. 2003). “The offense originated in order to overcome certain
defects in the law of attempt.” 3 Charles E. Torcia, Wharton’s Criminal Law § 316, at 224
(15th ed. 1995). Early in the days of common law:
conduct did not constitute an attempt unless it was very close to
consummation of the intended crime; and the penalties for attempt were
disproportionately low. By making a breaking and entering with the requisite
intent an independent substantive offense, lesser proximity to consummation
of the intended crime was required, and severe penalties could be imposed.
Id.
{16} It was “an offense against the security of habitation or occupancy, rather than against
ownership or property.” Id. at 223 (footnote omitted); accord 3 LaFave, supra, § 21.1(c),
at 212 (“common-law burglary found its theoretical basis in the protection of man’s right of
habitation”). As the Florida Supreme Court put it, “[t]he underlying purpose of the crime
of burglary was to punish the forcible invasion of a habitation and violation of the
heightened expectation of privacy and possessory rights of individuals in [certain] structures
. . . .” Drew, 773 So. 2d at 47.
{17} Over time, odd distinctions in the various elements of the common-law crime arose.
As an example, recall that at common law a burglary could only be committed in the
nighttime. But, “[t]he time when the sun sets or rises [was] not controlling.” 3 Torcia,
supra, § 327, at 264. Rather, “nighttime beg[an] when . . . the countenance of a person
cease[d] to be discernable by the light of the sun” and ended “when the countenance of a
person bec[ame] discernable again by the light of the sun.” Id.
{18} Even more oddities arose under the element of “breaking.” At common law,
“[r]aising a closed window was a breaking, but raising a partly open one was not.” Wright,
supra, at 412; accord 3 LaFave, supra, § 21.1(a), at 206. “In requiring a breaking the law
was not asking that the occupants of a dwelling turn their home into a fortress, but only that
they not leave openings which would ‘invite’ another to enter.” 3 LaFave, supra, § 21.1(a),
at 206-07. Thus, the common law required the occupant to take some measures to protect
the dwelling against any potential invitation of unwanted trespassers. Other odd distinctions
include the notion that “entering through an aperture in a wall or roof was not a constructive
breaking, but crawling down a chimney was; breaking open a cupboard within a dwelling
was not a breaking . . . whereas entering a closed room was.” Wright, supra, at 412.
Statutory Expansion
6
{19} The original common-law elements of burglary were largely kept intact through
burglary’s initial codification, but our Legislature had already begun expanding the crime.
See Compiled Laws of New Mexico 1884, Title IX, chapter III §§ 736 to 739 (Crane 1885);
Compiled Laws of New Mexico 1897, Title IX, chapter III §§1109 to 1112 (1897); NMSA
1929, §§ 35-1501 to 1507. As an example, the 1953 compilation of New Mexico statutes
contained several different burglary statutes designed to cover different factual scenarios,
but each statute remained rooted in the common-law definition. See, e.g., NMSA 1953, §
40-9-3 (1941) (defining burglary when unarmed as the breaking and entering of any dwelling
house in the night-time with the intent to commit the crime of murder, rape, theft, larceny,
or any felony); NMSA 1953, § 40-9-6 (1941) (defining breaking and entering into places
other than dwelling houses as the breaking and entering in the night-time of any office, shop,
or warehouse not adjoining to nor occupied as a dwelling house, with the intent to commit
murder, rape, theft larceny or any felony); NMSA 1953, § 40-9-7 (1941) (defining entry
without breaking in night-time and breaking and entry in day time as entry in night-time,
with or without breaking, or breaking and entering in the day time any dwelling house, or
any outhouse thereto adjoining, and occupied as such, or any office, shop, warehouse, or
mine with the intent to commit murder, rape, theft, larceny, or any other felony).
{20} In 1963, the burglary statutes were consolidated and, along with the rest of the
criminal code, recodified. See 1963 N.M. Laws, ch. 303, § 16-3. Under the new
consolidated statute, burglary was defined, much as it is today, as “the unauthorized entry
of any vehicle, watercraft, aircraft, dwelling or other structure, moveable or immovable, with
the intent to commit any felony or theft therein.” NMSA 1953, § 40A-16-3 (1963). This
new definition was described not only as a consolidation of the prior statutes, see Gonzales,
78 N.M. at 219, 430 P.2d at 377, but also as an expansion of the common-law crime, State
v. Bybee, 109 N.M. 44, 45, 781 P.2d 316, 317 (Ct. App. 1989).
{21} Absent from the new statute was the common-law requirement of a “breaking,”
replaced by the present requirement that the entry be “unauthorized.” See Section 30-16-3.
The new statute also stripped away the previous distinctions between day versus night and
a dwelling house compared with other structures. See Id. Our Court of Appeals has
correctly noted that the “Legislature has chosen only to keep the element of entry completely
intact.” Muqqddin, 2010-NMCA-069, ¶ 7.
Expansion Through Case Law
{22} Over time, our Court of Appeals expanded the structures that could be burglarized.
Since the new definition was adopted in 1963, that court has held that the open bed of a
pickup truck, Rodriguez, 101 N.M. at 194, 679 P.2d at 1292, the engine compartment of a
vehicle, Reynolds, 111 N.M. at 270, 804 P.2d at 1089, a post office box, State v. Gregory,
117 N.M. 104, 104, 869 P.2d 292, 292 (Ct. App. 1993), a concrete pad adjoining a building,
essentially described as a porch, open on three sides with a roof, State v. Gonzales, 2008-
NMCA-146, ¶ 8, 145 N.M. 110, 194 P.3d 725, and now a gas tank and the wheel well of a
vehicle are all prohibited space under Section 30-16-3.
7
{23} Two previous Court of Appeals cases have construed Section 30-16-3 as it applies
to vehicles. To reach its holding, the Rodriguez court concluded “that the bed of a pickup
truck, as part of a vehicle, falls within the statutorily protected area.” 101 N.M. at 194, 679
P.2d at 1292. In coming to that conclusion, the Court reasoned that the statute “expressly
include[d] ‘vehicles’ as a prohibited space” and the “Court must give words used in a statute
their ordinary meaning unless the legislature indicates a different intent.” Id. (internal
citation omitted).
{24} In Reynolds the Court held that the defendant was not entitled to an attempted
burglary instruction for attempting to steal a starter from the engine compartment of a
vehicle. 111 N.M. at 270, 804 P.2d at 1089. Rather, the defendant’s actions, reaching up
into the engine compartment in an attempt to remove the starter, constituted the completed
crime of burglary. Id.
{25} Only two Court of Appeals cases in the last forty years have found the structure
entered not to be prohibited space under Section 30-16-3. In Bybee, the Court held that a
vending machine did not fall under the definition of “other structure” and therefore was not
prohibited space. 109 N.M. at 46, 781 P.2d at 318. Bybee is a well-reasoned and in-depth
review of the issue presented. The Court took care to apply settled principles of statutory
construction to the issue presented and we approve of its reasoning.
{26} Throughout that opinion, the Bybee Court made some general observations about the
perils of reading too much into the literal meaning of ordinary words in a statute (e.g.,
“structure”) without due consideration of context. Notably, the Court relied on the rule of
lenity in coming to its conclusion, stating:
we do not believe the legislature intended the burglary statute to protect
space within any thing constructed, no matter how small, absent specific
language in the statute evincing intent to include such structure within the
proscription of the statute. Thus, considering Section 30-16-3(B) in light of
the rule that criminal statutes are construed strictly against the state, we do
not interpret the language “or other structure” to apply to soft drink vending
machines located outside a dwelling house or other structure.
Id. at 46, 781 P.2d at 318. As the structures that can be burglarized have been expanded over
the years, the rule of lenity and the rule that criminal statutes are construed strictly against
the state seems to have been overlooked. See Gregory, 117 N.M. 104, 869 P.2d 292(upholding a conviction of burglary for taking mail out of a post office box, the back of
which opened to a mail sorting room not open to the public).
{27} In addition, the Bybee court recognized that jurisprudence of other states may not be
relevant to New Mexico, at least not without careful examination of the reasoning of the case
and the language of the particular state’s burglary statute. The Court rejected authority from
other states, finding that “those cases are distinguishable by reason of the differences in the
8
specific language of the statutes involved.” Bybee, 109 N.M. at 46, 781 P.2d at 318.
Significantly, our research indicates that no other state has a burglary statute with the exact
language of Section 30-16-3, and only Louisiana has a statute that uses largely the same
language. See La. Rev. Stat. Ann. § 14:62 (2001) (“Simple burglary is the unauthorized
entering of any dwelling, vehicle, watercraft, or other structure, moveable or immovable, or
any cemetery, with the intent to commit a felony or theft therein . . . .”). Yet even
Louisiana’s statute differs significantly, omitting aircraft but adding cemeteries to the list of
prohibited spaces. Id. Other state statutes highlight even greater differences. For instance,
in California one can only commit burglary of a vehicle if the vehicle is locked, Cal. Penal
Code § 459 (West 1991), while Oklahoma’s burglary statute expressly includes vending
machines, Okla. Stat. Ann. tit. 21, § 1435 (West 1961).
{28} This is not to say that burglary jurisprudence and statutes from other jurisdictions are
never relevant or helpful when interpreting our own. However, when relying on such
authority we must ensure that another court is not relying on language that is absent from our
statute or that the language of the statute differs so greatly from ours that it serves a different
purpose. But see Gonzales, 2008-NMCA-146 (relying on Garrett v. State, 578 S.E.2d 460(Ga. 2002), to conclude that an open-air porch attached to a commercial structure can be
burglarized in New Mexico, while the Garrett court relied specifically on language in the
Georgia statute indicating that a structure or a part of a structure can be burglarized, an
addition that is absent from New Mexico’s statute.2).
{29} The only other case since the adoption of our current burglary statute that attempted
to limit its scope is State v Foulenfont, 119 N.M. 788, 895 P.2d 1329 (Ct. App. 1995) In
Foulenfont, the Court of Appeals again relied on the rule of lenity as well as the statutory-
construction rule of ejusdem generis, to conclude that the term “other structure” in Section
30-16-3 was not intended to include a fence. Id. at 788-90, 895 P.2d at 1329-31. The rule
of ejusdem generis requires, “that where general words follow an enumeration of persons
or things of a particular and specific meaning, the general words are not construed in their
widest extent but are instead construed as applying to persons or things of the same kind or
class as those specifically mentioned.” Id. at 791, 895 P.2d at 1332 (internal citation
omitted). Accordingly, that Court “interpret[ed] the phrase ‘other structure’ in Section 30-
16-3 to require an enclosure similar to a vehicle, watercraft, aircraft, or dwelling” and not
just a fenced-in area surrounding a mobile home sales office. Id.
{30} In Gonzales, this Court rejected the use of ejusdem generis when interpreting the
burglary statute. 78 N.M. at 219, 430 P.2d at 377. In rejecting its use, we stated that “[w]e
are impressed that 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.” Id. After
2
On July 1, 2012, amendments to Georgia’s burglary statute went into effect that
deleted the language relied on by the Garrett Court. See Ga. Code Ann. § 16-7-1 (West
2012).
9
further reflection, however, we agree with the Foulenfont court that the situation presented
in Gonzales “fit within the plain meaning of the statute,” so there was no need to resort to
the rules of statutory construction. Foulenfont, 119 N.M. at 791, 895 P.2d at 1332.
Accordingly, in Gonzales, “ejusdem generis was rejected insofar as the defendant [was]
arguing that the ‘other structure’ had to be akin to a dwelling or place of habitation and did
not include buildings used for commercial or other purposes.” Id. Such a view would
“undermine the legislative purpose” of broadening the prohibited space beyond “its common
law.” Id. While agreeing with the result in Gonzales, we also agree with Foulenfont, that
ejusdem generis is an important rule of statutory construction to be used when interpreting
the outer limits of prohibited space protected by the burglary statute.
{31} Specifically, we disavow any implication from Gonzales that the meaning of
statutory words defining the crime of burglary (e.g., “structure,” “entry”) should not be
considered in the context of other, similarly situated words in that same statute and limited
thereby. Our Legislature has said as much when it codified the ejusdem generis rule in the
Uniform Statute and Rules Construction Act, which applies directly to the burglary statute.
See NMSA § 12-2A-20 (A)(1)-(2) (“In considering the text of a statute or rule . . . and the
context in which the statute or rule is applied, the following aids of construction may be
considered in ascertaining the meaning of the text: (1) the meaning of a word or phrase may
be limited by the series of words or phrases of which it is a part; and (2) the meaning of a
general word or phrase following two or more specific words or phrases may be limited to
the category established by the specific words or phrases.”). Accordingly, from now on our
courts are to utilize this statutory construction rule in conjunction with other, similar aids to
focus more precisely on the true intent and meaning of burglary and its elements.
{32} The vehicle cases, Rodriguez and Reynolds, coupled with Bybee and Foulenfont,
create somewhat of an anomaly. The term “vehicle” has been construed very broadly, to
include any of its component parts, but the term “structure” has been construed narrowly so
as to exclude things that would clearly fall under its everyday definition. As a result, a
vending machine and a fence are not “structures,” but a gas tank and a wheel well are
“vehicles.”
Our Interpretation
Radical Departure
{33} In Muqqddin, the Court of Appeals repeated the notion that Section 30-16-3
“expresses ‘a radical departure from its common law predecessor.’” Muqqddin, 2010-
NMCA-069, ¶ 7 (quoting Rodriguez, 101 N.M. at 193, 679 P.2d at 1291). With respect, the
Court exaggerates. At first glance, the words of the statute bear little resemblance to the
common law, but that does not tell the whole story. One must remember that the new
definition was the result of the combination of several statutes that were firmly rooted in the
common law. Under the old statutory scheme, one could be convicted of burglary for
actions that occurred in the day or the night, for actions occurring in any shop, office or
10
warehouse in addition to any dwelling place, with or without a breaking. See NMSA 1953,
§§ 40-9-2 to -4, -6, -7, -10. The expanded definition present after recodification was
necessary to consolidate these different crimes into a single statute covering all the different
situations in which burglary could occur. The only element that remained in each of the old
burglary statutes was the element of entry.3 See id. Not insignificantly, this is the only
element that remains unmodified by the current definition of burglary. See Section 30-16-3.
{34} In addition to the consolidation, there is no doubt that the Legislature did intend to
expand the areas that could be burglarized, also known as the “prohibited space.” Vehicles,
watercraft, and aircraft are explicitly listed as prohibited space by the statute that were not
previously the subject of burglary. Compare Section 30-16-3, with NMSA 1953, §§ 40-9-2
to -4, -6, -7, -10. However, this expansion is not without limit, nor does it represent such a
radical departure from the common law that burglary’s original purpose, the protection of
the security of habitation, is no longer relevant. Rather, we agree with our predecessors in
Gonzales that the new statute represents a consolidation of the elements of the crime, see
Gonzales, 78 N.M. at 219, 430 P.2d at 377, while at the same time expanding the prohibited
space that can be burglarized.
Parts Are Not Equal To the Whole
{35} In each of the cases before us, the Court of Appeals relied heavily on the logical
inference that entry of a part of a vehicle is the same as entry of the vehicle itself. In
Muqqddin, the Court of Appeals stated that “[a] fuel tank—attached as it is, to a vehicle—is
unquestionably a part of that vehicle.” 2010-NMCA-069, ¶ 11. The Court then concluded
that “[a]ny penetration of a vehicle’s perimeter is thus a penetration of the vehicle itself.”
Id. Later, the Court of Appeals relied on the quoted language above from Muqqddin to
reverse the district court’s dismissal of the burglary charge against Defendant Dominguez-
Meraz. Dominguez-Meraz, No. 30,382, slip op. at 1.
{36} In New Mexico, the idea that entry of any part of a vehicle equals an entry of that
vehicle for the purposes of burglary appears to have originated in State v. Rodriguez, 101
N.M. 192, 679 P.2d 1290. In that case, the Court of Appeals decided that reaching into and
taking something from the open bed of a pickup truck constituted burglary under Section 30-
16-3. Id. at 193, 679 P.2d at 1291. The reasoning in that case is somewhat sparse, and is as
follows:
As [D]efendant has pointed out, this Court construes penal statutes strictly
in favor of the accused. In doing so, we follow established rules of statutory
construction.
3
Inexplicably, NMSA 1953, Section 40-9-2 applies to any person “who shall break
or enter.” (Emphasis added.) This distinction does not appear to be of consequence for the
purposes of this discussion.
11
A statute should be construed in light of the purpose for which it was
enacted. The general purpose of burglary statutes is to protect possessory
rights with respect to structures and conveyances, and to define prohibited
space.
Section 30-16-3 expressly includes vehicles as a prohibited space. Since this
Court must give words used in a statute their ordinary meaning unless the
legislature indicates a different intent, we hold that the bed of a pickup truck,
as a part of a vehicle, falls within the statutorily protected area.
Id. at 194, 679 P.2d at 1292 (emphasis added) (internal quotations and citations omitted).
{37} The problem with this holding is that our Legislature did not include “parts” of the
enumerated items that could be burglarized. Many other jurisdictions have explicitly
included “parts” of the enumerated items as prohibited space in burglary and other similar
statutes. See, e.g., 720 Ill. Comp. Stat. 5/19-1 (2010) (“A person commits burglary when
without authority he knowingly enters or without authority remains within a building,
housetrailer, watercraft, aircraft, motor vehicle as defined in the Illinois Vehicle Code,
railroad car, or any part thereof, with intent to commit therein a felony or theft.” (Emphasis
added)); Tex. Penal Code Ann. § 30.04 (West 2007) (“A person commits [burglary of a
vehicle] if, without the effective consent of the owner, he breaks into or enters a vehicle or
any part of a vehicle with intent to commit any felony or theft.” (Emphasis added.)); Ala.
Code 1975, § 13A-8-11(b) (1979); D.C. Code § 22-801(a) (1967); Okl. St. Ann. tit. 21, §
1435 (West 1965) S.D. Codified Laws § 22-1-2(49) (2005). The Legislature is free to define
the prohibited space of burglary to include any part of almost anything. But absent a clearer
intent to do so, we should not ourselves do that which the Legislature has declined to do.
It is for the Legislature alone to define statutory criminal acts, and when it does not do so
clearly, the rule of lenity compels judicial restraint. See State v. Hicks, 2002-NMCA-038,
¶ 11, 132 N.M. 68, 43 P.3d 1078.
{38} The Rodriguez Court focused on giving the term “vehicle” its plain meaning, but in
doing so failed to consider how that might effect the meaning of the statute as a whole. As
Chief Justice Montgomery stated in State ex. rel. Helman v. Gallegos
courts must exercise caution in applying the plain meaning rule. Its
beguiling simplicity may mask a host of reasons why a statute, apparently
clear and unambiguous on its face, may for one reason or another give rise
to legitimate (i.e., nonfrivilous) differences of opinion concerning the
statute’s meaning. . . . While—as in this case—one part of the statute may
appear absolutely clear and certain to the point of mathematical precision,
lurking in another part of the enactment, or even in the same section, or in the
history and background of the legislation, or in an apparent conflict between
the statutory wording and the overall legislative intent, there may be one or
more provisions giving rise to genuine uncertainty as to what the legislature
12
was trying to accomplish. In such a case, it is part of the essence of judicial
responsibility to search for and effectuate the legislative intent—the purpose
or object—underlying the statute.
117 N.M. 346, 353, 871 P.2d 1352, 1359 (1994). Both Rodriguez and the present cases
illustrate the point Justice Montgomery made. By giving the term “vehicle” its plain
meaning, the meaning of the statute as a whole became far from customary. For example,
if an ordinary person were told to “enter” a pickup, he or she would find a seat in the
passenger compartment, not lay down in the bed of the pickup. The same could be said for
the gas tank and wheel wells in the instant case. Accordingly, the “beguiling simplicity” of
the plain-meaning reasoning in Rodriguez causes discomfort, both in its result and in its
analysis, relying as it does on language (“a part of a vehicle”) missing from our statute.
Without clear text, the Legislature has given no indication that it intended an entry into a part
of the enumerated structures in Section 30-16-3 to be equal to an entry of that structure itself.
Accordingly, we reject any further use of Rodriguez as persuasive authority.
Burglary’s Modern Day Purpose
{39} In addition, we believe that the original common-law purpose of burglary, the
protection of the security of habitation or a similar space, is still relevant when construing
our modern burglary statute. As such, we reject the State’s argument that “today burglary
is a property crime,” at least to the extent the argument implies that it is the sole or primary
purpose of burglary. Larceny or even just damage to property is not necessary to commit
burglary. See State v. McAfee, 78 N.M. 108, 111, 428 P.2d 647, 650 (1967) (“Since stealing
is a necessary element of larceny but is not a necessary element of burglary, larceny is not
necessarily involved in a burglary.”); State v. Ortiz, 92 N.M. 166, 168, 584 P.2d 1306, 1308
(Ct. App. 1978) (“New Mexico no longer defines burglary in terms of a ‘breaking.’”).
Therefore, burglary has a greater purpose than merely protecting property.
{40} Our Court of Appeals has often stated that the purpose of our burglary statute is “to
protect possessory rights with respect to structures and conveyances, and to define prohibited
space.” Rodriguez, 101 N.M. at 194, 679 P.2d at 1292 (citing State v. Hankins, 376 So. 2d
285 (Fla. App. 1979) and People v. Davis, 369 N.E.2d 1376 (Ill. App. Ct. 1976) (internal
quotation marks omitted)). The possessory rights4 that burglary was designed to protect,
however, go beyond the mere right to physical possession of an object. The law was not
designed solely to deter trespass and theft, as those are prohibited by other laws. See People
v. Hall, 100 Cal. Rptr. 2d 279, 286 (Ct. App. 2000).
{41} Chief among the possessory interests that burglary is designed to protect is the right
4
Ironically, the Florida case, Hankins, 376 So.2d 285, upon which the Rodriguez
Court relied for this proposition, rejected the idea that stealing hubcaps from a vehicle was
burglary.
13
to exclude. Black’s Law Dictionary defines a possessory interest as “[t]he present right to
control property, including the right to exclude others . . . .” Black’s Law Dictionary 1284
(9th ed. 2009). This right to exclude has been described as “perhaps the most fundamental
of all property interests.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539 (2005). The
gravamen of the offense of burglary has always been the unauthorized entry with felonious
intent. See People v. Lamica, 79 Cal. Rptr. 491, 494 (Ct. App. 1969); People v. Fuentes, 258
P.3d 320, 325 (Colo. App. 2011); Hankins, 376 So.2d at 286; State v. DeWitt, 101 P.3d 277,
284 (Mont. 2004). It is this entry or invasion that is the harm created by the act of burglary
and that the statute punishes, as “[t]he crime of burglary is complete when there is an
unauthorized entry with the requisite intent.” State v. Martinez, 98 N.M. 27, 30, 644 P.2d
541, 544 (Ct. App. 1982). Therefore, the right to exclude others is the possessory interest
with which burglary is primarily concerned.
{42} The right to exclude also implies some notion of a privacy interest. See Rakas v.
Illinois, 439 U.S. 128, 143 n.12 (1978) (“[O]ne who owns or lawfully possesses or controls
property will in all likelihood have a legitimate expectation of privacy by virtue of this right
to exclude.”). It is the invasion of privacy and the victim’s feeling of being personally
violated that is the harm caused by the modern burglar, and the evil that our society is
attempting to deter through modern burglary statutes. See State v. Martinez, 832 P.2d 331,
336 (Idaho Ct. App. 1992) (Burglar “was not sentenced for misdemeanor injury to property,
but for the more serious invasion of privacy and security represented by the crime of
burglary.”); Arabie v. State, 699 P.2d 890, 894 (Alaska Ct. App. 1985) (A lawful entry
“imposes no . . . invasion of privacy on the property holder so as to render the culprit guilty
of burglary.”); State v. Tixier, 89 N.M. 297, 299, 551 P.2d 987, 989 (Ct. App. 1976)
(“Burglary is an offense against the security of the building.”).
{43} The privacy interest that our modern burglary statute protects is related to, though
broader than, the security of habitation. Both aim to protect against the feeling of violation
and vulnerability that occurs when a burglar invades one’s personal space. This is lacking
in the cases before us. One does not have the same feeling of personal violation when gas
has been siphoned from our vehicle or when someone steals a wheel as we do when an
intruder has been in our home or office rifling through our most intimate and treasured
belongings or even when an intruder has been exploring the contents of a glove compartment
or the trunk of a car.
Enclosure
{44} Moreover, we agree with Foulenfont that in order for an area to be considered
prohibited space under Section 30-16-3, it must have some sort of enclosure. Foulenfont,
119 N.M. at 791, 895 P.3d at 1332. Each of the enumerated structures in Section 30-16-3
either inherently has, or has been interpreted to require, some sort of enclosure.
Accordingly, we believe it is this enclosed space that the Legislature intended to protect.
{45} Prohibited space is private space. It is the nature of the enclosure that creates the
14
expectation of privacy. Enclosure puts the public on notice. As the California Court of
Appeals stated, “[t]he proper question is whether the nature of a structure’s composition is
such that a reasonable person would expect some protection from unauthorized intrusions.”
People v. Nible, 247 Cal. Rptr. 396, 399 (Ct. App. 1988), holding modified by People v.
Valencia, 46 P.3d 920, 924 (Cal. 2002).
{46} Accordingly, we disagree with the notion that any penetration of a vehicle’s
perimeter constitutes a penetration of the vehicle itself. Muqqddin, 2010-NMCA-069, ¶ 11.
This is simply an unworkable standard. We are aware that other jurisdictions allow a
burglary charge to stand whenever a defendant “breaks the close” of a structure, meaning
the defendant crosses some imaginary plane created by some portion of a structure that is by
its nature open to the elements. See Richardson v. State, 888 S.W.2d 822, 824 (Tex. Crim.
App. 1994).
{47} We find this line of reasoning unpersuasive for multiple reasons, although we note
again that the Legislature is free to define burglary as it wishes. Aside from lack of notice,
the concept of an imaginary plane is ambiguous, creating more questions than it answers and
subject to prosecutorial abuse. For instance, consider a flat-bed pickup truck. Would such
an imaginary plane run from the roof of the cab of the truck to the back bumper, such that
merely waving one’s hand over the flat-bed breaks the close? Would the close of a house
extend from the eaves to the foundation, such that stealing a shutter, obviously attached to
the outside requiring no entry of the house itself, becomes a burglary? Exactly what makes
up the perimeter of a vehicle? Is it just the body panels or does it include any parts that
protrude beyond those panels? It is for the Legislature, not the judiciary, to answer such
questions if it wishes. Without such legislative guidance, the courts should not be placed in
the position of inventing fictions to expand the definition of criminal activity.
{48} To be clear, the above reasoning does not apply to such things as an open window.
A window, by its nature, creates an opening in an enclosure, as opposed to a wheel well
which is an open structure. As such, a burglary can be committed through an open window.
See, e.g., State v. Peck, 150 N.W.2d 725 (S.D. 1967).
Our Courts Previously Cautioned Against Such Judicial Expansion
{49} This is not the first time our courts have cautioned against the continued expansion
of the crime of burglary without legislative license. As far back as 1987 one member of the
Court of Appeals warned against it. In State v. Sanchez, Judge Apodaca wrote a special
concurrence to express his concerns that “there is a risk involved in stepping too far afield,”
and he expressed concern that courts “may be approaching the limit of our [burglary]
statute’s application.” 105 N.M. 619, 622, 735 P.2d 536, 539 (Ct. App. 1987). Sanchez also
involved two consolidated cases in which the accused burglars entered buildings open to the
public but then passed into other areas of the building that were not open before stealing
various items. Id. at 619-20, 735 P.2d at 536-37. While Judge Apodaca joined in affirming
the convictions, he was concerned that we take care not to “blur those often fine-line
15
junctures of criminal elements, where one crime ends and another begins.” Id. at 623, 735
P.2d at 540. Specifically, he was concerned with “the potential problems with a broader
definition of burglary if the distinction between burglary and other crimes . . . is blurred.”
Id. at 622, 735 P.2d at 539.
NMSA 1978, Section 30-16D-5 (2009)
{50} The present cases show how easy it is to blur those “fine-line junctures” with an ever
broadening judicial interpretation of the crime of burglary. Significantly, the criminal acts
charged as burglary in these two cases are already punished under our statutes as other,
lesser crimes. The statutory misdemeanor of Injuring or Tampering with a Motor Vehicle,
NMSA 1978, Section 30-16D-5 (2009), along with our general larceny statute, NMSA 1978,
Section 30-16-1 (2006), appears to cover the present situations. Section 30-16D-5(A)(5)
makes it a misdemeanor to engage in the purposeful “draining or starting the drainage of any
radiator, oil tank or gas tank upon a motor vehicle without the permission of the owner.”
Section 30-16D-5(A)(5) (emphasis added). Similarly, Section 30-16D-5(A)(7) makes the
malicious “tightening or loosening [of] any bracket, bolt, wire, nut, screw or other fastening
on a motor vehicle” a misdemeanor as well. Section 30-16-5(A)(7) (emphasis added).
Obviously, stealing tires is punished as larceny; the question is whether it should be both
larceny and burglary, as the state suggests.
{51} By making the broad, sweeping statement that “[a]ny penetration of a vehicle’s
perimeter is thus a penetration of the vehicle itself,” thereby constituting burglary, the Court
of Appeals would essentially supplant various parts of Section 30-16D-5. Muqqddin, 2010-
NMCA-069, ¶ 11. It would be almost impossible to drain a gas tank or radiator or remove
a bolt or nut without penetrating the vehicle’s perimeter in some fashion. Accordingly, such
actions would always be punished as burglary, rather than, as the Legislature specifically
directed, the misdemeanor of Tampering with a Motor Vehicle.
{52} It is for the Legislature, not the courts and not the district attorney, to strike the
delicate balance between those grave crimes punishable as felonies and those lesser
infractions punishable as only misdemeanors. That balance requires value judgments that
should be made by the people’s representatives, not judicial officers, under a constitutional
system of separation of powers.
{53} We recognize that a person draining a gas tank or removing a bolt must also have the
requisite intent to commit a felony or theft before a burglary conviction is appropriate. But,
intent can rarely be proven directly and is most often proven by circumstantial evidence.
State v. Motes, 118 N.M. 727, 729, 885 P.2d 648, 650 (1994) (quoted authority omitted).
Say for instance, Defendant Muqqddin did not intend to keep the gasoline, but only drain it.
Since he had no intent to commit a theft, his actions should not support a burglary
conviction. But, as the Court of Appeals stated in State v. Wilkerson, “[a] jury could
reasonably infer from the defendant’s unauthorized presence in the vehicle that he had the
necessary intent to commit a felony or theft therein.” 83 N.M. 770, 771, 497 P.2d 981, 982
16
(Ct. App. 1972). Depending on the evidence, then, a jury might infer from the accused’s
presence under a vehicle that the accused had the requisite intent to commit a felony or a
theft. Accordingly, the action explicitly described by the Legislature in Section 30-16D-
5(A)(5) as a misdemeanor—draining a gas tank—might nearly always be prosecuted as a
felony, contrary to legislative direction.
{54} The lesson from cases such as those presented here, along the outer fringes of what
the Legislature may or may not consider as burglary, is that trial courts and trial counsel
must consider more than just the words of a statute. Words are the beginning, not the end;
they serve as portals into the thoughts behind the words of a criminal statute. Where, as
here, those thoughts are revealed in another, lesser statute, that becomes a fairly reliable
indicator of legislative intent, both as to the specific crime and, more importantly, the gravity
of the offense.
{55} Finally, the present cases show the absurd results that flow from such an expansive
reading of the burglary statute. A slight modification of the facts of Defendant Muqqddin’s
case makes this clear. If Defendant Muqqddin had poked a hole in the gas tank and instead
of collecting the gas, had let the gas run all over the ground creating a fire hazard, he would
have been guilty of a misdemeanor under the Tampering statute. But, because Defendant
Muqqddin captured the gas in an attempt to take it rather then letting it spill onto the ground,
thereby mitigating the fire hazard, he becomes subject to a felony according to the State’s
interpretation. Even more so, if the thief were to puncture the gas tank only to find it bone
dry, he should be guilty of attempted Tampering or criminal damage to property. But under
the expansive view espoused by the prosecutor, the hapless thief would still be subject to a
felony, regardless of results, if he “entered” with felonious intent.
{56} In Defendant Dominguez-Meraz’s case, the State argued that he “entered” the wheel
well for the purposes of the burglary statute. What if he chose to steal the wheels off of a
racing vehicle or some other car with protruding axles? Without a wheel well to “enter,” he
could only be charged with larceny, while Dominguez-Meraz stands threatened with both
larceny and burglary, all due to the happenstance of the wheel well. We are loathe to assume
that our Legislature intended such arbitrary distinctions, not at least without more well-
defined direction in the language of the statute.
{57} It would be helpful if our Legislature would address some of these distinctions, as
well as the effects of emerging technology upon the meaning of what constitutes an
“unauthorized entry.” This is especially true when the entry is accomplished by the use of
an instrument. See Davis, 958 P.2d at 1087-88. As the California Supreme Court stated,
“[i]t is important to establish reasonable limits as to what constitutes an entry by means of
an instrument for purposes of the burglary statute. Otherwise the scope of the burglary
statute could be expanded to absurd proportions.” Id. at 1087.
Rule of Lenity
17
{58} Finally, even if the Tampering statute did not exist, the rule of lenity, as correctly
applied in the Bybee and Foulenfont opinions, teaches that burglary does not fit the criminal
acts described in these two prosecutions. The rule of lenity requires that “ambiguity in
criminal statutes [be] strictly construed against the State.” Hicks, 2002-NMCA-038, ¶ 11.
“[A]ny doubts about the construction of penal statutes must be resolved in favor of lenity.”
Id. (internal quotation and citation omitted). As we have noted above, the situations
presented in these cases raise serious doubts as to whether the Legislature intended to punish
each defendant’s actions as burglary. Under the rule of lenity, that ambiguity must be
resolved in favor of Defendants. The Legislature is always free to address conduct like this
if it wishes to expand the scope of the burglary statute, as it has done at various times
throughout our history.
Guidance to Lower Courts
{59} 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 the Legislature intended
Section 30-16-3 to deter. Defining exactly what entries were intended to be prohibited by
Section 30-16-3 remains elusive. There are countless different scenarios and fact-patterns
that could arise such that any precise definition from this Court would undoubtedly include
entries not intended by the Legislature and vice-versa. However, when considering the
question, there are some guiding principles to remember.
{60} First and foremost, what is being punished as a felony under Section 30-16-3 is a
harmful entry. Again, the entry is the harm sought to be prevented, as the crime is complete
upon entry with the requisite intent. As a felony, burglary is a serious offense with serious
consequences. See Section 30-16-3 (defining burglary as either a third or fourth degree
felony). A burglary charge is no petty crime. See NMSA 1978, § 31-18-15(A)(9) to (10)
(2007) (defining the basic sentence for a third and fourth degree felony as three years
imprisonment and eighteen months imprisonment respectively).
{61} The punishment for burglary of a vehicle is the same as that for burglary of a
commercial building. We believe that this demonstrates a legislative intent to limit the areas
of a vehicle that are prohibited space under Section 30-16-3. The entries in these two cases
would be punished just the same as any burglary of a store or other commercial space such
as a warehouse, or unauthorized entry into the passenger space of a vehicle, watercraft or
airplane, all places where things are stored and personal items can be kept private. They are
all fourth-degree felonies. See Section 30-16-3(B). Yet the harm from the entry in
Defendants’ cases, as opposed to the ensuing theft, cannot be compared. Similar disparities
in future cases should be kept in mind, because we do not assume lightly that the Legislature
intends to act in an irrational manner.
{62} Prosecutors and courts must be cognizant of the disparity in potential penalties that
can stem from a burglary charge due to its unique place in our jurisprudence. As noted
above, even though the completed crime of burglary is but a step taken toward another
18
crime, it never merges with that completed crime. As a result, a burglar can be convicted
and sentenced for the burglary, a felony, as well as the subsequently completed or attempted
crime. This can easily lead to a punishment that may not fit the actions of the accused.
{63} Defendant Muqqddin, for instance, should have been prosecuted for Tampering with
a Motor Vehicle under Section 30-16D-5(A)(5), a misdemeanor, and attempted petty larceny
of the gasoline under Section 30-16-1(B), a petty misdemeanor. This would carry a possible
sentence of one and a half years of incarceration, see NMSA 1978, § 30-1-6 (1963), already
a steep punishment for the crime of attempting to steal a relatively small amount of gasoline.
But, when one adds the felony of burglary, his potential penalty doubles to three years.
Along a similar line, Defendant Dominguez-Meraz is surely subject to prosecution for
larceny of the tires, potentially a felony, and attempted larceny for those he could not steal.
But under the Court of Appeals’ reasoning, he would be subject to another fourth-degree
felony merely by virtue of where he was positioned when he attempted to remove the tires.
If the Legislature wants to expand burglary, blur the lines between crimes, and create
overlaps, then it should be left to the Legislature to do so. But in the absence of such
legislative action, trial courts and prosecutors should exercise caution in the use of judicial
power to act as surrogates for that which the Legislature has not done.
CONCLUSION
{64} We reverse the Court of Appeals and vacate Defendant Muqqddin’s burglary
conviction and affirm the district court’s dismissal of the burglary charge against Defendant
Dominguez-Meraz.
{65} IT IS SO ORDERED.
____________________________________
RICHARD C. BOSSON, Justice
WE CONCUR:
____________________________________
PETRA JIMENEZ MAES, Chief Justice
____________________________________
PATRICIO M. SERNA, Justice
____________________________________
EDWARD L. CHÁVEZ, Justice
____________________________________
CHARLES W. DANIELS, Justice
19
Topic Index for State v. Office of the Public Defender, Nos. 32,430/32,632
APPEAL AND ERROR
Standard of Review
CRIMINAL LAW
Burglary
STATUTES
Interpretation
Legislative Intent
Rules of Construction
20