State v. Campbell
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This memorandum opinion was not selected for publication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 STATE OF NEW MEXICO 3 Plaintiff-Appellant, 4 v. No. 33,695 5 LORIE ESTELLE CAMPBELL 6 Defendant-Appellee. 7 APPEAL FROM THE DISTRICT COURT OF DON˜A ANA COUNTY 8 Darren M. Kugler, District Judge 9 Hector H. Balderas, Attorney General 10 Margaret McLean, Assistant Attorney General 11 Santa Fe, NM 12 for Appellant 13 Jorge A. Alvarado, Chief Public Defender 14 Sergio Viscoli, Appellate Defender 15 Santa Fe, NM 16 for Appellee 17 18 FRY, Judge. MEMORANDUM OPINION 1 {1} The State appeals from the district court’s order granting Defendant’s motion 2 to dismiss the charge of non-residential burglary. [RP 39, 57] Our notice proposed 3 to affirm, relying on our recently decided opinion State v. Archuleta, ___-NMCA-___, 4 ___ P.3d ___ (No. 32,794, October 27, 2014) (holding that “violating an order of no 5 trespass by entering an otherwise open public shopping area with the intent to commit 6 a theft does not constitute the type of harmful entry required for a violation of the 7 burglary statute”), cert. granted, 2015-NMCERT-___ (No. 35,005, Jan. 26, 2015). 8 The State has filed a response, objecting to our notice and requesting that we hold this 9 appeal in abeyance or provide the State with a reasonable opportunity to seek 10 guidance from the New Mexico Supreme Court on all pending appeals controlled by 11 our opinion in Archuleta. [Ct.App.File] We have provided the State with such an 12 opportunity, and the Supreme Court has denied the State a stay or other remedy that 13 would suspend the precedential value of Archuleta. Thus, we apply Archuleta. See 14 Rule 12-405(C) NMRA (“A petition for writ of certiorari filed pursuant to Rule 1215 502 NMRA or a Supreme Court order granting the petition does not affect the 16 precedential value of an opinion of the Court of Appeals, unless ordered by the 17 Supreme Court.”). 2 1 {2} In its response to our notice, the State objects to our proposed disposition, but 2 indicates that “it is unable to provide any additional facts or other legal argument in 3 response to the proposed disposition.” [Response] Because there are no material 4 factual distinctions to remove this case from the control of our opinion in Archuleta, 5 we affirm the district court’s order granting Defendant’s motion to dismiss the charge 6 of non-residential burglary. 7 IT IS SO ORDERED. 8 9 _________________________ CYNTHIA A. FRY, Judge 10 WE CONCUR: 11 ______________________________ 12 MICHAEL E. VIGIL, Chief Judge 13 ______________________________ 14 RODERICK KENNEDY, Judge 3
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