State v. Shelby

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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 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.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-Appellee, 4 v. No. 34,682 5 JEREMIAH BRIAN SHELBY, 6 Defendant-Appellant. 7 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 8 Karen L. Townsend, District Judge 9 10 11 12 Hector H. Balderas, Attorney General Santa Fe, NM Steven Johnston, Assistant Attorney General Albuquerque, NM 13 for Appellee 14 Jorge A. Alvarado, Chief Public Defender 15 Kathleen T. Baldridge, Assistant Appellate Defender 16 Santa Fe, NM 17 for Appellant 18 19 VIGIL, Chief Judge. MEMORANDUM OPINION 1 {1} Defendant appeals from the district court’s judgment and sentence, convicting 2 him for breaking and entering, and acquitting him for larceny over $500 and criminal 3 damage to property. Unpersuaded that Defendant demonstrated error, we issued a 4 notice of proposed summary disposition, proposing to affirm. Defendant has 5 responded to our notice with a memorandum in opposition. We have considered 6 Defendant’s response and remain unpersuaded. We affirm Defendant’s convictions. 7 {2} On appeal, Defendant argues that the evidence was insufficient to establish that 8 he knowingly entered Ms. Lucero’s home without permission, an essential element 9 of breaking and entering. [MIO 3-7] We do not repeat the analysis contained in our 10 notice; rather we address only those arguments Defendant asserts in response to our 11 proposed analysis. In response to our notice, Defendant disagrees with our reliance on 12 State v. Rubio, 1999-NMCA-018, 126 N.M. 579, 973 P.2d 256, in proposing summary 13 affirmance. Defendant contends that Rubio is not controlling because the defendant 14 in that case, Rubio, was not directly challenging the sufficiency of the evidence, he 15 was challenging the breaking and entering instruction. [MIO 6] See id. ¶¶ 4-5. We 16 agree with Defendant’s characterization of Rubio’s argument, but this Court’s opinion 17 did assess the sufficiency of the evidence to support the conclusion that Rubio entered 18 the dwelling without authority to do so. See id. ¶ 9. (“The testimony below evidences 19 nothing more than that Defendant was a frequent visitor at Reynolds’ apartment and 2 1 that he was there with Reynolds’ permission. In sum, we believe that the evidence 2 overwhelmingly supports the conclusion that Defendant did not have blanket authority 3 to enter the apartment, or that whatever authority he may have had was freely 4 revocable by Reynolds.”). Id ¶ 9. As a result, we find guidance in the Court’s 5 application of law to fact in Rubio. 6 {3} Also in response to our notice, Defendant distinguishes the facts in Rubio on 7 the grounds that Rubio’s girlfriend expressly denied him permission to enter her 8 apartment; whereas, in the current case, Ms. Lucero did not expressly deny or grant 9 Defendant permission to enter her home. [MIO 7] We are not persuaded that this 10 distinction renders the State’s evidence insufficient. The breaking and entering statute 11 does not require a showing that the victim expressly denied the defendant 12 authorization to enter his or her home in order for the entry to be unauthorized. See 13 NMSA 1978, § 30-14-8(A) (1981) (“Breaking and entering consists of the 14 unauthorized entry of any . . . dwelling . . ., where entry is obtained by fraud or 15 deception, or by the breaking or dismantling of any part of the . . . dwelling . . ., or by 16 the breaking or dismantling of any device used to secure the . . . dwelling . . . [.]”); UJI 17 14-1410 NMRA (stating that the jury must find that the defendant entered the property 18 without permission). We note that our proposed analysis did not rely on the fact that 19 Rubio was expressly denied permission, because the Court’s opinion emphasized that 3 1 despite Rubio’s close relationship and shared parental responsibilities with his 2 girlfriend, Rubio nevertheless had a separate dwelling and did not have “blanket 3 permission” to enter his girlfriend’s house. See Rubio, 1999-NMCA-018, ¶¶ 2-3, 9. 4 In the current case, Defendant did not have the same type of relationship and shared 5 responsibilities with Ms. Lucero that might give rise to a “blanket permission” to enter 6 Ms. Lucero’s home. In Defendant’s situation, they had an “on again, off again” 7 relationship; [DS 2] and they were just friends at the time Ms. Lucero left town. [RP 8 75] Ms. Lucero testified that even when she and Defendant were dating, they were 9 permitted to go into each other’s homes, but only when they gave each other notice. 10 [RP 82] There is no question that Defendant did not have authority to enter Ms. 11 Lucero’s home. As we stated in our notice, Ms. Lucero’s express permission to enter 12 her home was required for Defendant to enter it, and Ms. Lucero testified that she had 13 not given Defendant permission to enter her house or take her things or her dog, as 14 Defendant did. [RP 75] As a result, we hold that Defendant’s argument that the 15 evidence was insufficient as a matter of law fails. 16 {4} We also note that Defendant’s argument ignores the reasonable inferences the 17 jury could draw from the evidence of Defendant’s conduct in gaining entry into Ms. 18 Lucero’s home and thereafter. See State v. Riley, 2010-NMSC-005, ¶ 12, 147 N.M. 19 557, 226 P.3d 656 (reviewing both direct and circumstantial evidence for their 4 1 sufficiency in supporting the conviction); State v. Cunningham, 2000-NMSC-009, ¶ 2 26, 128 N.M. 711, 998 P.2d 176 (observing that the reviewing court “view[s] the 3 evidence in the light most favorable to the guilty verdict, indulging all reasonable 4 inferences and resolving all conflicts in the evidence in favor of the verdict”). Viewing 5 the evidence consistently with our standard of review, we believe that the State 6 presented sufficient evidence that Defendant’s entry into Ms. Lucero’s home by 7 damaging her back door was an unauthorized entry within the meaning of the offense 8 of breaking and entering. [RP 117] 9 CONCLUSION 10 {5} For the reasons stated in this opinion and in our notice, we affirm the district 11 court’s judgment and sentence. 12 {6} IT IS SO ORDERED. 13 14 ________________________________ MICHAEL E. VIGIL, Chief Judge 15 WE CONCUR: 16 ________________________________ 17 JAMES J. WECHSLER, Judge 18 ________________________________ 5 1 LINDA M. VANZI, Judge 6

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