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The burglary statute requires a defendant to have a specific intent to commit any felony or theft therein. N.M. Stat. Ann. § 30-16-3. The breaking and entering statute requires the unauthorized entry to be effectuated by a specified means, which the burglary statute does not. N.M. Stat. Ann. § 30-14-8(A). Therefore, under the Blockburger strict elements test, both offenses require proof of an element the other does not, and it can be inferred therefrom that the legislature intended to authorize separate punishments under the burglary and breaking and entering statutes. This inference, however, is not conclusive because the breaking and entering statute includes alternative means of entry, such as by fraud or deception, or by breaking or dismantling. Section 30-14-8(A). In light of the alternative means presented by the breaking and entering statute, courts apply the modified Blockburger test to examine other indicia of legislative intent. Also, the test for sufficiency of the evidence is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilty beyond a reasonable doubt with respect to every element essential to a conviction. Under this test, an appellate court views the evidence in the light most favorable to the State, resolving all conflicts and making all permissible inferences in favor of the jury's verdict. Jury instructions become the law of the case against which the sufficiency of the evidence is to be measured.
Defendant Franklin D. Begaye was arrested following a report of a break-in at Ram Signs, a business in New Mexico. Testimony established that on that night, the co-owner Michael Mordecki heard a loud bang coming from the front of the building. He discovered that the front window had been smashed in and called the police. The police officer arrived at the scene, and verified that the intruder was not in the building. Inside the building, the officer observed a broken window, an overturned cash box, and disarray around an employee's desk. Nothing had been taken by the intruder, but the front office area had been rifled through. Outside the building, he noticed shoe prints leading to and from the nearby fence line, as well as an area where it appeared someone had crawled under the fence. Security footage provided by another co-owner of Ram Signs, revealed that the suspect was a male wearing light shoes, dark pants, and a dark jacket over a light hoodie. In searching nearby areas, police officer observed defendant, who matched the description of the individual in the video, walking along the main street, and upon approach, he saw what appeared to be shards of glass on defendant's jacket and noticed that defendant's pants and shoes were muddy. The police officer detained and searched defendant. Defendant was charged with fourth degree felony offenses of non-residential burglary, breaking and entering, and possession of burglary tools. At defendant's jury trial, the plaintiff State presented testimony from the co-owners and the police officer. The plaintiff State also played the security camera footage, presented photographs of the scene, and admitted the clothing, boots, gloves, and screwdriver that the officer collected from defendant on the night of the incident. Defendant was convicted on all charges. This appeal followed.
Was the defendant’s conviction with fourth degree felony offenses of non-residential burglary, breaking and entering, and possession of burglary tools proper?
The judgment was affirmed in part and reversed in part. The court held that defendant's convictions for breaking and entering and aggravated burglary did not violate double jeopardy because the charging documents specifically relied on the breaking or dismantling component of the breaking and entering statute under N.M. Stat. Ann. § 30-14-8(A), and relied on the intent to commit a felony or theft therein component of the burglary statute under N.M. Stat. Ann. § 30-16-3, as such, the plaintiff’s theory of the case regarding the conduct required by the two charges was adequately distinguishable and not solely premised on the unitary conduct. However, the evidence was insufficient under N.M. Stat. Ann. § 30-16-5 to sustain defendant's conviction for possession of burglary tools because the ultimate inference was premised upon a series of additional inferences that were not supported, such as hypothetical explanations as to why defendant might wear gloves.