State v. Begaye

Decision Date12 January 2023
Docket NumberS-1-SC-38797
PartiesSTATE OF NEW MEXICO, Plaintiff-Respondent, v. FRANKLIN D. BEGAYE, Defendant-Petitioner.
CourtNew Mexico Supreme Court

John Dean, Jr., District Judge Bennett J. Baur, Chief Public Defender Mary Barket, Assistant Appellate Defender Santa Fe NM for Petitioner

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



{¶1}This case requires us to consider whether Defendant Franklin Begaye's convictions for nonresidential burglary and breaking and entering violated his right to be free from double jeopardy. Defendant was convicted of both crimes after he broke into a business in Farmington, New Mexico. In the proceedings below, the district court determined that the nonresidential burglary and breaking and entering charges did not 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. Porter 2020-NMSC-020, 476 P.3d 1201, resolves the issue, this appeal indicates that confusion persists within our double jeopardy jurisprudence warranting further clarification. We conclude that Defendant's right to be free from double jeopardy was violated when he was convicted for both breaking and entering and nonresidential burglary because the underlying conduct was unitary and, under the State's theory, the burglary offense subsumed the breaking and entering offense. "[I]f we determine that one of the offenses subsumes the other offense, the double jeopardy prohibition is violated and punishment cannot be had for both." Id. ¶ 20 (internal quotation marks and citation omitted). We reverse.

A. Facts

{¶2}On February 28, 2017, Defendant was arrested following a report of a breakin at Ram Signs, a business in Farmington, New Mexico. That night, Ram Signs coowner, Michael Mordecki, heard a loud bang in the lobby of his business. Mr. Mordecki found the front window smashed and called the police. Farmington Police Department Officer Justin Nichols responded. He verified that the intruder was not in the building and proceeded to inspect the premises. Officer Nichols testified that the front window was broken, the cash drawer was pulled out and its contents were on the floor, and the front desk was in disarray. Nevertheless, nothing was taken.

{¶3}Security footage showed an individual smashing and eventually falling through the front glass window. After reviewing the footage, Officer Nichols directed officers to search the area for an adult male wearing dark pants, lightercolored boots, headgear, and a dark jacket over a lighter-colored hoodie. On his way back to the police station, Officer Nichols saw Defendant, who matched the description of the individual in the security footage. Upon approaching Defendant, Officer Nichols observed a considerable amount of glass covering Defendant's jacket. Defendant was detained and ultimately charged with nonresidential burglary, contrary to NMSA 1978, Section 30-16-3(B) (1971), and breaking and entering, contrary to NMSA 1978, Section 30-14-8 (1981).[1]

B. Procedural History

{¶4}At trial, Defendant's attorney moved to dismiss the breaking and entering charge on double jeopardy grounds, arguing that the State relied upon the same conduct and evidence to support both breaking and entering and nonresidential burglary. The district court denied Defendant's motion, concluding that there was no double jeopardy violation because breaking and entering required proof of the distinct element of force-an element not required to prove burglary. After having been convicted on both charges, Defendant appealed.

{¶5} In a published opinion, the Court of Appeals affirmed Defendant's breaking and entering and burglary convictions, holding that "Defendant's convictions for breaking and entering and aggravated burglary did not offend his right to be free from double jeopardy."[2] Begaye, 2022-NMCA-010, ¶ 16. In reaching its holding, the Court of Appeals first correctly recognized that this case involved a double jeopardy, multiple description issue and applied the two-part Swafford test, which examines "'(1) whether the conduct is unitary, and, if so, (2) whether the Legislature intended to punish the offenses separately.'" Id. ¶¶ 5-6 (quoting State v. Gonzales, 2019-NMCA-036, ¶ 14, 444 P.3d 1064 (citing Swafford v. State, 1991-NMSC-043, ¶ 25, 112 N.M. 3, 810 P.2d 1223)).

{¶6}After explaining that the first part of the Swafford test was satisfied because the State did not dispute that the conduct in this case was unitary, the Court of Appeals proceeded to apply the strict-elements test established by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 304 (1932), to ascertain legislative intent. Begaye, 2022-NMCA-010, ¶¶ 6-7; see Swafford, 1991-NMSC-043, ¶ 10 (explaining that the only consideration under the strict-elements test is "whether each provision requires proof of a fact the other does not" (internal quotation marks and citation omitted)). Applying the strict-elements test, the Court of Appeals explained that burglary, Section 30-16-3, requires a specific intent "'to commit any felony or theft therein,'" while breaking and entering, Section 30-14-8, requires "the unauthorized entry to be effectuated by a specified means." Begaye, 2022-NMCA-010, ¶ 10. The Court of Appeals concluded that there was no double jeopardy violation because "both offenses require proof of an element the other does not" and therefore, according to the Court of Appeals, it was the Legislature's intent to authorize separate punishments for breaking and entering and nonresidential burglary. Id.

{¶7}After reaching its conclusion, the Court of Appeals nonetheless proceeded to apply the modified Blockburger test adopted by this Court in State v. Gutierrez, 2011-NMSC-024, ¶ 48, 150 N.M. 232, 258 P.3d 1024, "to examine other indicia of legislative intent" and confirm that there was no double jeopardy violation under the strict-elements test. Begaye, 2022-NMCA-010, ¶¶ 10-11. The Court of Appeals acknowledged that the modified test applies when a statute is written in the alternative or "can be violated in more than one way," id. ¶¶ 8, 11, and explained that "'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.'" Id. ¶ 8 (quoting Porter, 2020-NMSC-020, ¶ 8).

{¶8} Applying the modified Blockburger analysis, the Court of Appeals initially recognized that the purpose of "New Mexico's breaking and entering statute is itself grounded in common law burglary" but reiterated that each statute requires distinct elements. Begaye, 2022-NMCA-010, ¶¶ 11-12 (text only)[3] (citing State v. Holt, 2016-NMSC-011, ¶ 15, 368 P.3d 409). Additionally, the Court of Appeals concluded that "the Legislature intended to authorize separate punishments under the statutes" because the "purpose of the breaking and entering statute is sufficiently distinct from the purpose of the burglary statute" in that "[t]he crime of burglary punishes the broader criminal conduct of any unauthorized entry when there is specific criminal intent." Begaye, 2022-NMCA-010, ¶ 13; see § 30-16-3.

{¶9}Finally, the Court of Appeals turned to the State's theory of the case, analyzing the jury instructions and charging documents. Id. ¶¶ 14-16. As part of this analysis, the Court of Appeals revisited whether the conduct in this case was unitary as conceded by the State on appeal, noting that "the State did not suggest that the jury rely on the unauthorized entrance as the sole basis for conviction of each crime." Id. ¶ 15. As to the jury instructions, the Court of Appeals concluded that breaking and entering was not subsumed into burglary because each charge required different elements: burglary required a specific intent to commit a theft, while breaking and entering required "the jury . . . to find that the unauthorized entrance was effectuated by breaking the window." Id. According to the Court of Appeals, "That additional element-one that was not required by the burglary instruction-establishes that Defendant's conviction for breaking and entering could not have been subsumed within the aggravated burglary conviction." Id.

{¶10}Reviewing the charging documents, the Court of Appeals reiterated that the breaking and entering charge relied upon "breaking or dismantling" and that the burglary charge relied upon the "intent to commit a felony or theft therein." Id. ¶ 16 (internal quotation marks and citations omitted). The Court of Appeals held that Defendant's double jeopardy rights were not violated because "the conduct required by the two charges was adequately distinguishable and not solely premised on the unitary conduct." Id. ¶ 16 (emphasis added). The Court of Appeals' holding appeared to be predicated on two findings: (1) The language and purpose of the burglary and breaking and entering statutes suggest that the Legislature intended to allow separate punishments under both provisions, see id. ¶ 14, and (2) the State's legal theory of the case, as gleaned from the charging documents and the jury instructions, did not depart from the elements set out in the burglary and breaking and entering statutes, each of which requires proof of an element the other does not, see id. ¶¶ 14-16.


{¶11}Defendant's challenge that his convictions for burglary and breaking and entering violated his right to be free from double jeopardy is reviewed de novo. State v. Torres, 2018-NMSC-013 ¶ 17, 413 P.3d 467 ("A double jeopardy challenge presents a...

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