State v. Archuleta

• Decision Date: 27 October 2014
• Docket Number: No. 35,005.,32,794.,35,005.
• Citation: 346 P.3d 390
• Parties: STATE of New Mexico, Plaintiff–Appellant, v. Joseph ARCHULETA, Defendant–Appellee.
• Court: Court of Appeals of New Mexico

346 P.3d 390

STATE of New Mexico, Plaintiff–Appellant

v.Joseph ARCHULETA, Defendant–Appellee.

32,794.

No. 35,005.

Court of Appeals of New Mexico.

Oct. 27, 2014.

Certiorari Granted, Jan. 26, 2015,

Gary K. King, Attorney General, Corinna Laszlo–Henry, Assistant Attorney General, Santa Fe, NM, M. Anne Kelly, Assistant Attorney General, Albuquerque, NM, for Appellant.

Law Offices of the Public Defender, Jorge A. Alvarado, Chief Public Defender, Kimberly Chavez Cook, Assistant Appellate Defender, Santa Fe, NM, for Appellee.

OPINION

VIGIL, Judge.

{1} State v. Tower, 2002–NMCA–109, ¶ 9, 133 N.M. 32, 59 P.3d 1264, holds that entry into a commercial business establishment contrary to a no trespass order constitutes an “unauthorized entry” into the business under our commercial burglary statute. The question presented in this case is whether Tower should be overruled in light of our Supreme Court's opinion in State v. Office of the Public Defender ex rel. Muqqddin, 2012–NMSC–029, 285 P.3d 622. The district court concluded that Tower is no longer viable in light of Muqqddin, and dismissed the indictment charging Defendant with one count of commercial burglary in violation of NMSA 1978, Section 30–16–3(B) (1971), and the State appeals. Agreeing with the district court, we overrule Tower and affirm.

BACKGROUND

{2} Defendant was charged with one count of commercial burglary on the basis that he entered a Walgreens store “without authorization or permission, with intent to commit any felony or a theft therein[.]” Defendant filed a motion to dismiss pursuant to Rule 5–601 NMRA and State v. Foulenfont, 1995–NMCA–028, 119 N.M. 788, 895 P.2d 1329, requesting that the district court determine “[w]hether, as a matter of law, entry into a commercial establishment during business hours with intent to commit a theft within the business, when such entry was made after a no trespass order had been served, constitutes the offense of [b]urglary[.]”

{3} For purposes of the motion, Defendant conceded that he entered a Walgreens store through a public entrance during business hours and without ever leaving any areas openly accessible to the public, concealed a bottle of Bacardi Rum worth twelve dollars and eighty-three cents ($12.83) in his jacket and walked past all final points of sale without paying for the bottle. Defendant further conceded that he had previously been issued a warning that he was denied permission to enter or remain on property belonging to Walgreens and that he intended to commit a theft from the Walgreens when he entered it. Defendant argued that charging him with the felony of burglary, rather than with misdemeanor criminal trespass and shoplifting or petty larceny, resulted in the overly expansive application of the burglary statute cautioned against by our Supreme Court in Muqqddin.

{4} The State opposed the motion on the grounds that the issue was improperly raised as a Foulenfont motion,¹ that Tower is directly on point, and that Muqqddin is distinguishable. The district court determined that, while Tower is directly on point, Muqqddin directed trial courts to consider what the Legislature intended when applying the burglary statute. And, having considered the Legislature's intent, the district court determined that the Legislature did not intend for the burglary statute to be used to prosecute what are “better revealed in the lesser statutes of [t]respass ... and [s]hoplifting[.]” The district court therefore dismissed the charge with prejudice. In reaching its determination, the district court relied on the following undisputed facts:

1. Defendant entered into a Walgreens store, which is a commercial business establishment during business hours with intent to commit theft within the business.

2. Defendant committed a theft with[in] the business.

3. The entry was made after a no trespass order had been issued and served on Defendant, and Defendant's permission to be inside the store had been explicitly revoked.

DISCUSSION

{5} On appeal, we must decide whether to overrule a prior opinion of this Court. The decision to overrule prior precedent is not one that is undertaken lightly. We remain “mindful of the principles of stare decisis and take care to overrule established precedent only when the circumstances require it.” State v. Pieri, 2009–NMSC–019, ¶ 21, 146 N.M. 155, 207 P.3d 1132. Thus, before overruling a prior opinion, we consider:

1) whether the precedent is so unworkable as to be intolerable; 2) whether parties justifiably relied on the precedent so that reversing it would create an undue hardship; 3) whether the principles of law have developed to such an extent as to leave the old rule no more than a remnant of abandoned doctrine; and 4) whether the facts have changed in the interval from the old rule to reconsideration so as to have robbed the old rule of justification.

State v. Swick, 2012–NMSC–018, ¶ 17, 279 P.3d 747 (quoting State v. Riley, 2010–NMSC–005, ¶ 34, 147 N.M. 557, 226 P.3d 656, overruled on other grounds by State v. Montoya, 2013–NMSC–020, ¶ 2, 306 P.3d 426 ). “When one of the aforementioned circumstances convincingly demonstrates that a past decision is wrong,” we should not hesitate to overrule even recent precedent. Pieri, 2009–NMSC–019, ¶ 21, 146 N.M. 155, 207 P.3d 1132 (alteration, internal quotation marks, and citation omitted). With these principles in mind, we now turn to a consideration of Muqqddin and Tower.

Muqqddin

{6} In Muqqddin, our New Mexico Supreme Court called into question forty years of this Court's burglary decisions. Our Supreme Court noted that, during that time, this Court “issued numerous opinions that, for the most part, ... expanded significantly the reach of the burglary statute,” and noted that this expansion “occurred without any parallel change in the statute.” 2012–NMSC–029, ¶ 1, 285 P.3d 622. According to our Supreme Court,

[a]s 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. 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.

Id. ¶ 3 (citation omitted).

{7} Our Supreme Court instructed 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.” Id. ¶ 39. The Supreme Court reminded both bench and bar that “burglary has a greater purpose than merely protecting property[,]” id. ¶ 39, and that “[i]t 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.” Id. ¶ 42. While our Supreme Court recognized that “[t]he privacy interest that our modern burglary statute protects is ... broader than[ ] the security of habitation,” it also noted that the burglary statute is still aimed at “protect[ing] against the feeling of violation and vulnerability that occurs when a burglar invades one's personal space.” Id. ¶ 43.

{8} Finally, the Supreme Court provided guidance to lower courts, reminding us that “[f]irst and foremost, what is being punished as a felony under Section 30–16–3 is a harmful entry[,]” id. ¶ 60; that such entry refers to “places where things are stored and personal items can be kept private[,]” id. ¶ 61; and that “burglary is a serious offense with serious consequences [,]” id. ¶ 60. Keeping in mind our Supreme Court's effort at guiding future applications of our burglary statute, we now turn to Tower.

Tower

{9} In 2002, this Court issued its decision in Tower. After being caught shoplifting at a Foley's department store, the defendant was given a trespass notice by Foley's, informing him that he was no longer welcome in any Foley's and, if he was ever found on Foley's property, he would be arrested for criminal trespass. 2002–NMCA–109, ¶ 2, 133 N.M. 32, 59 P.3d 1264. Two years later, after the defendant was seen in Foley's shoplifting, he was indicted on charges of burglary and larceny. Id. ¶ 3. The district court dismissed the burglary charges on the ground that the defendant had inadequate notice “that his re-entry into Foley's [would] result in any charge more severe than trespassing.” Id. (internal quotation marks omitted). The state appealed the district court's decision.

{10} On appeal, we addressed whether the burglary statute was unconstitutionally vague as applied to the defendant's conduct and, therefore, whether the defendant's conduct was clearly proscribed by the burglary statute. Id. ¶ 4 (stating that, “[b]ecause the essence of a vagueness claim rests on a lack of notice, a party may not succeed on the claim if the statute clearly applies to the defendant's conduct” (internal quotation marks and citation omitted)). We held that the burglary statute clearly applied:

The crime of burglary “consists of the unauthorized entry of any ... structure, ... with the intent to commit any felony or theft therein.” Here, [the d]efendant entered the Foley's department store after his permission to enter had been revoked. Thus, he was unauthorized to enter the store. Since he was caught stealing articles from the store, it can reasonably be inferred that he entered the store with the intent to steal items from it. It appears that the burglary statute clearly applies to [the d]efendant's conduct.

Id. ¶ 5 (omissions in origina...