State v. Begaye

Decision Date30 March 2021
Docket NumberA-1-CA-37314
Citation505 P.3d 855
Parties STATE of New Mexico, Plaintiff-Appellee, v. Franklin D. BEGAYE, Defendant-Appellant.
CourtCourt of Appeals of New Mexico

Hector H. Balderas, Attorney General, Santa Fe, NM, Walter M. Hart, III, Assistant Attorney General, Albuquerque, NM for Appellee

Bennett J. Baur, Chief Public Defender, Mary Barket, Assistant Appellate Defender, Santa Fe, NM for Appellant

HANISEE, Chief Judge.

{1} Defendant Franklin Begaye appeals his convictions for non-residential burglary, contrary to NMSA 1978, Section 30-16-3(B) (1971) ; breaking and entering, contrary to NMSA 1978, Section 30-14-8 (1981) ; and possession of burglary tools, contrary to NMSA 1978, Section 30-16-5 (1963). On appeal, Defendant requests that we vacate his convictions for breaking and entering and possession of burglary tools and contends that (1) his convictions for burglary and breaking and entering violate his right to be free from double jeopardy; and (2) there was insufficient evidence to support his conviction for possession of burglary tools. We affirm in part and reverse in part.

BACKGROUND

{2} Defendant was arrested on February 28, 2017, following a report of a break-in at Ram Signs, a business in Farmington, New Mexico. Testimony established that around 8:00 p.m. that night, Ram Signs co-owner Michael Mordecki heard a loud bang coming from the front of the building. Soon thereafter, Mr. Mordecki discovered that the front window had been smashed in and called the police. Officer Justin Nichols arrived at the scene, verified that the intruder was not in the building, and inspected the area. Inside the building, Officer Nichols 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, Officer Nichols 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.

{3} Security footage provided by Monica Mordecki, also a 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, Officer Nichols observed Defendant, who matched the description of the individual in the video, walking along Farmington's main street, and upon approach, Officer Nichols saw what appeared to be shards of glass on Defendant's jacket and noticed that Defendant's pants and shoes were muddy. Officer Nichols detained and searched Defendant, finding a pair of black mechanic's gloves, and a small red flathead screwdriver in the front pocket of Defendant's pants. Officer Nichols also collected several of Defendant's clothing items, including his hat, boots, jacket, hoodie, and pants.

{4} 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 State presented testimony from, among other witnesses, Mr. and Mrs. Mordecki and Officer Nichols. The State also played the security camera footage, presented photographs of the scene, and admitted the clothing, boots, gloves, and screwdriver that Officer Nichols collected from Defendant on the night of the incident. Defendant was convicted on all charges. This appeal followed.

DISCUSSION
I. Defendant's Convictions of Burglary and Breaking and Entering Do Not Violate Double Jeopardy

{5} Defendant argues that his convictions for burglary and breaking and entering violate his right to be free from double jeopardy because both convictions are premised on the same act of a single unauthorized entry. Defendant's argument "presents a constitutional question of law, which we review de novo." State v. Gonzales , 2019-NMCA-036, ¶ 14, 444 P.3d 1064. Double jeopardy protects defendants from receiving multiple punishments for the same offense. Swafford v. State , 1991-NMSC-043, ¶ 6, 112 N.M. 3, 810 P.2d 1223.

{6} Here, Defendant raises a double-description double jeopardy claim, "in which a single act results in multiple charges under different criminal statutes[.]" State v. Bernal , 2006-NMSC-050, ¶ 7, 140 N.M. 644, 146 P.3d 289. "In analyzing double-description challenges, we employ the two-part test, set out in Swafford ..., in which we examine: (1) whether the conduct is unitary, and, if so, (2) whether the Legislature intended to punish the offenses separately." Gonzales , 2019-NMCA-036, ¶ 14, 444 P.3d 1064. "Only if the first part of the test is answered in the affirmative, and the second in the negative, will the double jeopardy clause prohibit multiple punishment in the same trial." State v. Silvas , 2015-NMSC-006, ¶ 9, 343 P.3d 616 (internal quotation marks and citation omitted). Here, the State does not dispute Defendant's contention that the conduct—the single unauthorized entry—was unitary. Accordingly, we consider the first part of the Swafford test to be satisfied and move directly to our analysis of the second.

{7} Where, as here, Defendant's conduct is unitary, we next analyze legislative intent, looking first to the language of the statutes. See Silvas , 2015-NMSC-006, ¶ 11, 343 P.3d 616. "Absent a clear intent for multiple punishments, we apply the Blockburger test." Silvas , 2015-NMSC-006, ¶ 11, 343 P.3d 616 ; see Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Blockburger provides that "the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." 284 U.S. at 304, 52 S.Ct. 180. "If one statute requires proof of a fact that the other does not, then the Legislature is presumed to have intended a separate punishment for each statute without offending principles of double jeopardy." Silvas , 2015-NMSC-006, ¶ 12, 343 P.3d 616. "That presumption, however, is not conclusive and it may be overcome by other indicia of legislative intent." Id. ¶ 13 (internal quotation marks and citation omitted).

{8} Since its adoption, the New Mexico Supreme Court has modified the Blockburger test, clarifying that application of the test "should not be so mechanical that it is enough for two statutes to have different elements." State v. Swick , 2012-NMSC-018, ¶ 21, 279 P.3d 747. When discerning legislative intent for the purpose of the modified Blockburger test, we may look to the "language, structure, history, and purpose" of the relevant statutes. State v. Franco , 2005-NMSC-013, ¶ 12, 137 N.M. 447, 112 P.3d 1104. "If the statutes can be violated in more than one way, by alternative conduct, the modified Blockburger analysis demands that we compare the elements of the offense, looking at the [s]tate's legal theory of how the statutes were violated." State v. Porter , 2020-NMSC-020, ¶ 8, 476 P.3d 1201. We may ascertain the state's legal theory "by examining the charging documents and the jury instructions given in the case." Swick , 2012-NMSC-018, ¶ 21, 279 P.3d 747.

{9} Here, Defendant argues that the modified Blockburger test should apply to our analysis of Defendant's double jeopardy claim. Defendant contends that within a modified Blockburger analysis and under the State's legal theory of the case, breaking and entering was subsumed within the burglary conviction, therefore, double jeopardy bars his conviction under the breaking and entering statute. Defendant further claims, in the alternative, that even if the elements of each statute are distinct, other indicia of legislative intent make clear that the Legislature did not intend to permit separate convictions under both the burglary and the breaking and entering statutes based on a single unauthorized entry. The State argues, in turn, that under either a strict or modified Blockburger test, Defendant's convictions are not barred by double jeopardy because both offenses require proof of an element the other does not and the Legislature intended to permit separate convictions under the two statutes.

{10} While there is no stated intent that the burglary and breaking and entering statutes allow for multiple punishments, we can presume the Legislature intended to allow separate punishment under the statutes because each provision requires proof of a factual element that the other does not. See Silvas , 2015-NMSC-006, ¶ 12, 343 P.3d 616. Section 30-16-3, prohibiting non-residential burglary, reads in pertinent part, "[b]urglary consists of the unauthorized entry of any ... dwelling or other structure, movable or immovable, with the intent to commit any felony or theft therein." Meanwhile, Section 30-14-8(A) prohibits breaking and entering and reads, in pertinent part, "[b]reaking and entering consists of the unauthorized entry of any ... dwelling or other structure, movable or immovable, where entry is obtained by fraud or deception, or by the breaking or dismantling of any part of the ... dwelling or other structure[.]" While both offenses require an unauthorized entry into a dwelling, the burglary statute requires a defendant to have a specific intent "to commit any felony or theft therein." Section 30-16-3. Further, the breaking and entering statute requires the unauthorized entry to be effectuated by a specified means, which the burglary statute does not. Section 30-14-8(A). Therefore, under the Blockburger strict elements test, both offenses require proof of an element the other does not, and we can infer therefrom that the Legislature intended to authorize separate punishments under the burglary and breaking and entering statutes. See State v. Hernandez , 1999-NMCA-105, ¶ 29, 127 N.M. 769, 987 P.2d 1156 (explaining that breaking and entering and aggravated burglary each required an element not included in the other, as burglary can be accomplished by any unauthorized entry with the intent to commit a theft, while breaking and entering requires...

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3 cases
  • State v. Baier
    • United States
    • Court of Appeals of New Mexico
    • December 27, 2022
    ...and breaking and entering. [BIC 17-30] In doing so, Defendant acknowledges this Court's recent opinion in State v. Begaye, 2022-NMCA-010, 505 P.3d 855, cert. granted(S-1-SC-38797, Dec. 27, 2021) in which we addressed a similar argument. [BIC 20-21] Just as in Begaye, the charging instrument......
  • State v. Begaye
    • United States
    • New Mexico Supreme Court
    • January 12, 2023
    ...violate double jeopardy. The Court of Appeals affirmed the district court in a formal opinion. State v. Begaye, 2022-NMCA-010, ¶¶ 1, 31, 505 P.3d 855. Though our guidance in State v. 2020-NMSC-020, 476 P.3d 1201, resolves the issue, this appeal indicates that confusion persists within our d......
  • State v. Begaye
    • United States
    • New Mexico Supreme Court
    • January 12, 2023
    ...violate double jeopardy. The Court of Appeals affirmed the district court in a formal opinion. State v. Begaye, 2022-NMCA-010, ¶¶ 1, 31, 505 P.3d 855. Though our guidance in State v. 2020-NMSC-020, 476 P.3d 1201, resolves the issue, this appeal indicates that confusion persists within our d......

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