2020 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 16 - Larceny
Section 30-16-4 - Aggravated burglary.

Aggravated burglary consists of the unauthorized entry of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, with intent to commit any felony or theft therein and the person either:

A. is armed with a deadly weapon;

B. after entering, arms himself with a deadly weapon;

C. commits a battery upon any person while in such place, or in entering or leaving such place.

Whoever commits aggravated burglary is guilty of a second degree felony.

History: 1953 Comp., § 40A-16-4, enacted by Laws 1963, ch. 303, § 16-4.

Cross references. — For definition of deadly weapon, see 30-1-12 NMSA 1978.

For battery, see 30-3-4 NMSA 1978.

For instruction as to essential elements of aggravated burglary, see UJI 14-1632 NMRA.

The unit of prosecution for aggravated burglary is an unlawful entry with intent to commit a felony. — When there is only one unauthorized entry, there can only be one aggravated burglary, even if defendant commits multiple aggravating acts. State v. Swick, 2012-NMSC-018, 279 P.3d 747, rev'g 2010-NMCA-098, 148 N.M. 895, 242 P.3d 462 and overruling State v. Armendariz, 2006-NMSC-036, 140 N.M. 182, 141 P.3d 526.

Convictions of aggravated burglary while committing a battery and aggravated burglary with a deadly weapon violated double jeopardy. — Where defendant, who was armed with a knife and who intended to steal a vehicle from the victims, entered the victims' home, stabbed one victim, and beat and stabbed the other victim; and defendant was convicted of aggravated burglary while committing a battery and aggravated burglary with a deadly weapon, defendant's convictions violated the prohibition against double jeopardy. State v. Swick, 2012-NMSC-018, 279 P.3d 747, rev'g 2010-NMCA-098, 148 N.M. 895, 242 P.3d 462 and overruling State v. Armendariz, 2006-NMSC-036, 140 N.M. 182, 141 P.3d 526.

Double jeopardy. — Where the force used to complete aggravated burglary constituted the same force used to restrain a victim to accomplish CSP II there were insufficient indicia of distinctness differentiating the acts and a conviction on both is impermissible on double jeopardy grounds. State v. Armendariz, 2006-NMCA-152, 140 N.M. 712, 148 P.3d 198, cert. quashed, 2008-NMCERT-002, 143 N.M. 665, 180 P.3d 674.

Lesser included offense. — Under the facts of this case, the aggravated burglary offense could not be committed without also committing the crime of dangerous use of explosives; the explosives offense does not have an element not included in the burglary offense. The explosives offense was an offense included within the aggravated burglary offense. State v. Jacobs, 1985-NMCA-054, 102 N.M. 801, 701 P.2d 400.

Instruction on lesser included offense. — When criminal trespass is factually based solely on unlawful entry, not on unlawfully remaining without consent, then criminal trespass is necessarily included within the offense of aggravated burglary of a dwelling house and a defendant is entitled to an instruction on the lesser included offense. State v. Romero, 1998-NMCA-057, 125 N.M. 161, 958 P.2d 119

Double jeopardy. — Section 30-16-4 NMSA 1978 is designed to address the heightened threat associated with possession of deadly weapons and to deter their possession in the course of burglaries even if no use is intended. By contrast, Subsection C of Section 30-16-4 NMSA 1978 is designed to address actual physical injury to persons during a burglary. Because these factors reinforce the presumption of distinct, punishable offenses, a defendant's convictions pursuant to these two separate statutory subsections do not offend double jeopardy principles. State v. Swick, 2010-NMCA-098, 148 N.M. 895, 242 P.3d 462.

Legislative intent to deter firearm possession during crime. — The adoption of several statutes, one classifying aggravated burglary as a second degree felony, and the other specifying that simple burglary is a fourth-degree felony, evinces a clear legislative intention to deter the commission of burglaries and the possession of firearms during such crimes. State v. Luna, 1982-NMCA-150, 99 N.M. 76, 653 P.2d 1222, cert. denied, 99 N.M. 148, 655 P.2d 160.

Crucial factor in crime of aggravated burglary is whether the defendant has the intent to commit a felony on entering the dwelling, not whether the felony was actually committed, as the intent does not have to be consummated. State v. Castro, 1979-NMCA-023, 92 N.M. 585, 592 P.2d 185, cert. denied, 92 N.M. 621, 593 P.2d 62.

Meaning of "deadly weapon". — Deadly weapons shall be construed to mean any kind or class of pistol or gun, whether loaded or unloaded. State v. Montano, 1961-NMSC-174, 69 N.M. 332, 367 P.2d 95.

Theft is not a necessary element of aggravated burglary, which requires only the element of intent to commit any felony or theft. State v. Ranne, 1969-NMCA-029, 80 N.M. 188, 453 P.2d 209.

Elements of robbery and aggravated burglary are not the same, and therefore, defendant could be sentenced for each of these crimes. State v. Ranne, 1969-NMCA-029, 80 N.M. 188, 453 P.2d 209.

Breaking and entering not lesser included offense. — Breaking and entering is not a lesser included offense of aggravated burglary because each offense requires an element not included in the other and, by convicting defendant of breaking and entering when he only had notice of an aggravated burglary, the trial court violated his right to notice of the charges against him. State v. Hernandez, 1999-NMCA-105, 127 N.M. 769, 987 P.2d 1156, cert. denied, 128 N.M. 149, 990 P.2d 823.

Larceny of a firearm distinguished. — Aggravated burglary and larceny of a firearm are different crimes, with different elements: larceny of a firearm requires proof that the firearm was stolen but does not require proof of an unlawful entry. State v. Tisthammer, 1998-NMCA-115, 126 N.M. 52, 966 P.2d 760, cert. denied, 126 N.M. 107, 967 P.2d 447.

Aggravated burglary and sex offense separate crimes. — Since aggravated burglary and criminal sexual penetration in the third degree (30-9-11 NMSA 1978) each require proof of facts which the other does not and since neither offense necessarily involves the other, there would be no double jeopardy violation and no merger of the offenses despite the fact that the same evidence may go toward proving both. State v. Young, 1978-NMCA-040, 91 N.M. 647, 579 P.2d 179, cert. denied, 91 N.M. 751, 580 P.2d 972, and cert. denied, 439 U.S. 957, 99 S. Ct. 357, 58 L. Ed. 2d 348 (1978).

Where the victim awoke and found the defendant on top of her and the defendant told her not to move or make a noise or he would blow her head off, that was evidence of a battery. When the battery preceded sexual activity, there was evidence of an aggravated burglary apart from a sex offense, and the two offenses did not merge, nor was the "same transaction" test applied. State v. Archunde, 1978-NMCA-050, 91 N.M. 682, 579 P.2d 808.

Where defendant's acts constituting battery for purposes of aggravated burglary charges and acts constituting criminal sexual penetration (CSP) were separate and distinct, convictions and consecutive sentences for both CSP and aggravated burglary did not violate double jeopardy. Lucero v. Kerby, 133 F.3d 1299 (10th Cir.), cert. denied, 523 U.S. 1110, 118 S. Ct. 1684, 140 L. Ed. 2d 821 (1998).

Aggravated burglary and attempted criminal sexual penetration merged. — Defendant's conduct consisting of his entry into a dwelling with intent to commit a felony and attempted criminal sexual penetration (CSP II) was unitary, thus his convictions for both aggravated burglary and attempted CSP II violated double jeopardy. Lucero v. Kerby, 133 F.3d 1299 (10th Cir.), cert. denied, 523 U.S. 1110, 118 S. Ct. 1684, 140 L. Ed. 2d 821 (1998).

Aggravated burglary and first degree murder not unitary. — First degree murder and aggravated burglary were not unitary acts, and imposition of sentences for both offenses did not violate double jeopardy. State v. Livernois, 1997-NMSC-019, 123 N.M. 128, 934 P.2d 1057.

Indictment adequate. — Indictment employing the name given the offense by statute and specifically referring to the section and subsection of the statute which created the offense sufficiently charged crime of aggravated burglary, despite failure to allege an entry with intent to commit a felony or theft. State v. Turner, 1970-NMCA-024, 81 N.M. 450, 468 P.2d 421, cert. denied, 81 N.M. 506, 469 P.2d 151 (decided under prior law).

Unauthorized entry. — An allegation or proof of ownership of a building or structure, the subject of a burglary charge, is unnecessary. State v. Flores, 1971-NMCA-036, 82 N.M. 480, 483 P.2d 1320.

Entry into separate residence of spouse. — Section 40-3-3 NMSA 1978 does not provide immunity from prosecution for burglary of a spouse's separate residence. State v. Parvilus, 2014-NMSC-028, rev'g 2013-NMCA-025, 297 P.3d 1228.

Where, because of domestic problems, defendant rented a separate apartment for defendant's spouse; the parties agreed that the apartment was the spouse's separate residence, that defendant would not have a key to the apartment, and that defendant did not have the spouse's permission to enter the apartment; and several months later, defendant entered the spouse's apartment through a window, 40-3-3 NMSA 1978 did not preclude defendant's conviction for burglary of the spouse's separate dwelling. State v. Parvilus, 2014-NMSC-028, rev'g 2013-NMCA-025, 297 P.3d 1228.

The plain language of Section 40-3-3 NMSA 1978 renders inter-spousal burglary an impossibility because the New Mexico burglary statutes protect the possessory right to exclude and Section 40-3-3 NMSA 1978 dictates that spouses have no such right to exclude the other spouse. State v. Parvilus, 2013-NMCA-025, 297 P.3d 1228, cert. granted, 2013-NMCERT-001.

Entry into residence of estranged spouse. — Where defendant entered defendant's estranged spouse's apartment without permission, kidnapped the victim, and killed the victim, Section 40-3-3 NMSA 1978 prohibited defendant's spouse from excluding defendant from the spouse's apartment and defendant's entry into the apartment, even with felonious purpose, did not constitute aggravated burglary as a matter of law. State v. Parvilus, 2013-NMCA-025, 297 P.3d 1228, cert. granted, 2013-NMCERT-001.

Battery while unarmed not lesser crime. — The legislature made no distinction in severity of punishment between a defendant who commits a burglary while armed with a deadly weapon as opposed to an unarmed defendant who causes a victim physical harm by committing a battery. State v. Romero, 1994-NMCA-150, 119 N.M. 195, 889 P.2d 230, cert. denied, 119 N.M. 20, 888 P.2d 466.

Intent to steal vehicle sufficient. — Breaking into a car with the intent to steal the car qualifies as an intent to commit a theft "therein." State v. Griffin, 1993-NMSC-071, 116 N.M. 689, 866 P.2d 1156.

"Armed" defined. — "Armed" includes a stolen deadly weapon which is easily accessible and readily available for use during the commission of the burglary whether or not it is actually on the person of the accused. State v. Padilla, 1996-NMCA-072, 122 N.M. 92, 920 P.2d 1046, cert. denied, 122 N.M. 1, 919 P.2d 409.

Corroboration of use of gun. — In prosecution for aggravated burglary and aggravated battery testimony by victim that he was struck by defendant with a gun on and about his face was corroborated by fact that he recognized the gun in question, by defendant's testimony that he threw the gun away after leaving the scene and by photographs of victim showing facial cuts and abrasions; furthermore, corroboration was not required. State v. Tafoya, 1969-NMCA-073, 80 N.M. 494, 458 P.2d 98.

Possession of unloaded firearm sufficient. — Subsection B (Section 30 16 4 NMSA 1978) is violated by a person who in the commission of a burglary becomes armed with an unloaded firearm. Whether a defendant is in actual possession of a firearm within the contemplation of Subsection B (Section 30-16-4 NMSA 1978) or possesses the requisite intent to commit a felony may, however, present a factual issue to be determined by the trier of fact. State v. Luna, 1982-NMCA-150, 99 N.M. 76, 653 P.2d 1222, cert. denied, 99 N.M. 148, 655 P.2d 160.

"Leaving such place". — The legislature intended the word "leaving" in Subsection C (Section 30 16 4 NMSA 1978) to be given the ordinary meaning of "departing or going away from" and not "losing exterior contact with"; thus, when the burglarized area is an area of restricted access in an otherwise public building, a person will be deemed to be leaving the area so long as that person is still in the public portion of the building. State v. Romero, 1994-NMCA-150, 119 N.M. 195, 889 P.2d 230, cert. denied, 119 N.M. 20, 888 P.2d 466.

Collateral offenses admissible. — Testimony of victim and corroborating witness as to an assault on the same night and in same vicinity as the crimes of aggravated burglary and aggravated battery for which defendant was on trial, offered upon issue of identity, was admissible as an exception to rule prohibiting evidence of collateral offenses. State v. Turner, 1970-NMCA-024, 81 N.M. 450, 468 P.2d 421, cert. denied, 81 N.M. 506, 469 P.2d 151.

In prosecution for aggravated burglary, armed robbery and rape, testimony of victim raped an hour after initial crime about five blocks away was admissible in order to establish characteristic conduct and defendant's possession of knife and flashlight which figured in first crime. State v. Lopez, 1969-NMCA-057, 80 N.M. 599, 458 P.2d 851, cert. denied, 80 N.M. 607, 458 P.2d 859, and cert. denied, 398 U.S. 942, 90 S. Ct. 1860, 26 L. Ed. 2d 279 (1970).

Conflicting evidence for jury. — Although based on certain deception tests (polygraph, sodium amytol and hypnosis) the experts considered defendant truthful in his denial, the testimony of the complaining witness presented on issue of fact for the jury, and defendant was not entitled to a directed verdict on charges of aggravated battery and aggravated burglary. State v. Turner, 1970-NMCA-024, 81 N.M. 450, 468 P.2d 421, cert. denied, 81 N.M. 506, 469 P.2d 151.

Intent established. — Where defendant made an unauthorized entry into an apartment, armed with a knife, and began to kiss and fondle the female occupant who was asleep, the evidence was sufficient to establish that defendant's intent upon entry was to commit an aggravated assault, and therefore he was guilty of aggravated burglary. State v. Mata, 1974-NMCA-067, 86 N.M. 548, 525 P.2d 908, cert. denied, 86 N.M. 528, 525 P.2d 888.

Instructions which substantially follow language of the statute are sufficient. State v. Lopez, 1969-NMCA-057, 80 N.M. 599, 458 P.2d 851, cert. denied, 80 N.M. 607, 458 P.2d 859, and cert. denied, 398 U.S. 942, 90 S. Ct. 1860, 26 L. Ed. 2d 279 (1970).

Charge of lesser offense not warranted. — Offense of unlawfully carrying a deadly weapon is neither a degree of burglary, nor the higher degree of aggravated burglary, and not being an included offense, trial court did not err in refusing to submit to the jury the offense of unlawfully carrying a deadly weapon as a lesser included offense. State v. Andrada, 1971-NMCA-033, 82 N.M. 543, 484 P.2d 763, cert. denied, 82 N.M. 534, 484 P.2d 754.

Breaking-and-entering, lesser included offense instruction rejected since no evidence to support. — Where defendant was charged with aggravated burglary, his tendered instruction on lesser included offense of breaking and entering was properly rejected because there was no evidence to support the commission of the lesser offense. State v. Smith, 1986-NMCA-089, 104 N.M. 729, 726 P.2d 883, cert. denied, 104 N.M. 702, 726 P.2d 856.

Insanity defense. — Trial court committed reversible error in refusing to instruct on defense of insanity, where expert medical testimony regarding defendant's heroin addiction injected reasonable doubt as to his mental illness at the time of the burglary. State v. Flores, 1971-NMCA-036, 82 N.M. 480, 483 P.2d 1320.

Juror present for police investigation. — Conviction for entering a dwelling with intent to commit a felony while armed with a deadly weapon should be reversed, where after verdict fact came to light that following commission of the crime and on the same day one juror was present in the dwelling in question with the complaining witness while two police officers who testified at trial sought latent fingerprints, on basis of which defendant was convicted. Mares v. State, 1971-NMSC-106, 83 N.M. 225, 490 P.2d 667.

Sufficient evidence based on testimony of an accomplice. — Where defendant was convicted of aggravated burglary based on the testimony of an accomplice, defendant's argument, that such testimony when uncorroborated by physical evidence is insufficient as a matter of law, was without merit, because the uncorroborated testimony of an accomplice is sufficient in law to support a verdict for aggravated burglary. State v. Montoya, 2016-NMCA-098, cert. denied.

Sufficient evidence to support conviction, despite failure to preserve fingerprints or trace ownership of weapon. State v. Peterson, 1985-NMCA-109, 103 N.M. 638, 711 P.2d 915, cert. denied, 475 U.S. 1052, 106 S. Ct. 1279, 89 L. Ed. 2d 586 (1986).

Evidence, consisting of co-conspirator's testimony as to defendant's involvement in burglaries, was sufficient to support a conviction under this section; it is the province of the jury to determine a witness's credibility, and an appellate court will not substitute its judgment for that of the jury. State v. Tisthammer, 1998-NMCA-115, 126 N.M. 52, 966 P.2d 760, cert. denied, 126 N.M. 107, 967 P.2d 447.

There was sufficient evidence to uphold defendant's aggravated burglary conviction because (1) defendant's use of a tire iron to break into a house fell under the definition that defendant was "armed" with a weapon, pursuant to 30-1-12B NMSA 1978 and (the tire iron) was easily accessible and readily available for use, and (2) the use of a tire iron to break a window constituted "entry" under this section. State v. Alvarez-Lopez, 2003-NMCA-039, 133 N.M. 404, 62 P.3d 1286, rev'd on other grounds, State v. Alvarez-Lopez, 2004-NMSC-030, 136 N.M. 309, 98 P.3d 699.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 13 Am. Jur. 2d Burglary § 27.

Walking cane as deadly or dangerous weapon for purposes of statutes aggravating offenses such as assault and robbery, 8 A.L.R.4th 842.

Parts of the human body, other than feet, as deadly or dangerous weapons for purposes of statutes aggravating offenses such as assault and robbery, 8 A.L.R.4th 1268.

What is "building" or "house" within burglary or breaking and entering statute, 68 A.L.R.4th 425.

Fact that gun was unloaded as affecting criminal responsibility, 68 A.L.R.4th 507.

Admissibility of expert opinion stating whether a particular knife was, or could have been, the weapon used in a crime, 83 A.L.R.4th 660.

12A C.J.S. Burglary §§ 6, 7.