State v. Contreras

• Decision Date: 24 July 2007
• Docket Number: No. 26,007.,26,007.
• Citation: 167 P.3d 966,2007 NMCA 119
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Anthony CONTRERAS, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

167 P.3d 966

2007 NMCA 119

STATE of New Mexico, Plaintiff-Appellee, v. Anthony CONTRERAS, Defendant-Appellant.

No. 26,007.

Court of Appeals of New Mexico.

July 24, 2007.

Gary K. King, Attorney General, Santa Fe, NM, Ralph E. Trujillo, Assistant Attorney General, Albuquerque, NM for Appellee.

John Bigelow, Chief Public Defender, Nancy M. Hewitt, Assistant Appellate Defender, Santa Fe, NM, for Appellant.

OPINION

SUTIN, Chief Judge.

{1} Defendant Anthony Contreras was convicted of breaking and entering, contrary to NMSA 1978, § 30-14-8(A) (1981), and criminal damage to property, contrary to NMSA 1978, § 30-15-1 (1963). He appeals, on two grounds, only his conviction for breaking and entering. The first is that the district court erred by refusing his instruction on the defense of mistake of fact. The district court denied the instruction after concluding that insufficient evidence had been presented to support giving the instruction. We disagree, holding that the evidence was sufficient and Defendant was entitled to a jury instruction on his theory of defense. The second ground is that the district court erred by refusing to instruct the jury on criminal trespass with damage as a lesser-included offense of breaking and entering. We affirm the district court's denial of that instruction.

BACKGROUND

{2} Defendant checked into a Motel 6 at 3:30 one afternoon and paid for a room. He was assigned Room 125 and was given a plastic key card, but the key card did not have a room number on it. Defendant was very intoxicated when he checked in and he left his identification at the front desk. At 4:45 p.m., the police were called to the Motel 6 because someone had thrown a heavy trash can through the window of Room 121. Room 121 was four doors down from Room 125. When Officer Salbidrez arrived, he went into Room 121 and began to give verbal commands to the person inside. Defendant came out from the bathroom area. He did not have his shoes on and he was obviously intoxicated. Defendant initially responded to the officer with obscene remarks, although when told that he was under arrest, he offered to pay for the window. The officer found nothing broken or damaged in the room, other than the broken window, and nothing had been stolen. Defendant's key card was found on the ground outside of Room 121. The officer confirmed that the key opened Room 125. Defendant was indicted on one charge of breaking and entering, contrary to Section 30-14-8(A) and one charge of criminal damage to property, contrary to Section 30-15-1.

{3} Defendant did not testify at trial. He did not present any evidence. No witness testified as to any statements made by Defendant about why he broke the window or whether he thought he had permission to be in Room 121. Based on the evidence presented in the State's case, Defendant requested an instruction on mistake of fact and argued that he showed his identification, paid for a room, had permission to go into a room, thought he was entering the room he had a right to be in, and made a mistake. He argued that this mistake of fact negated the mental state accompanying entry without permission, which is an element of breaking and entering and, therefore, did not commit the crime of breaking and entering, even if he would have been guilty of a different crime based on breaking the window. Defendant's requested mistake-of-fact instruction was based on UJI 14-5120 NMRA and read as follows.

Evidence has been presented that the defendant believed that he had a right to enter the motel room. The burden is on the state to prove beyond a reasonable doubt that the defendant did not act under an honest and reasonable belief in the existence of those facts. If you have a reasonable doubt as to whether the defendant's action resulted from a mistaken belief of those facts, you must find the defendant not guilty.

Defendant also requested that the instruction on the elements of breaking and entering required the State to prove beyond a reasonable doubt that (1) he "entered a motel room without permission"; (2) "[t]he entry was obtained by the breaking of a window"; and (3) he "did not act under a mistake of fact[,] i.e. that he entered without permission[.]"

{4} The district court refused to give the instruction and concluded that the evidence was not sufficient to support the instruction. The court indicated that direct evidence was not required, but that a mistake could not be inferred, and Defendant would have to prove more than what the evidence showed. The court further stated that there was no evidence of what Defendant believed and thus denied Defendant's request regarding the mistake-of-fact instruction.

{5} Defendant also requested an instruction on criminal trespass with damage as a lesser-included offense of breaking and entering. The court refused to give that instruction on the ground that criminal trespass with damage requires that the damage occur after the entry onto the property. Defendant was convicted of breaking and entering and criminal damage to property.

DISCUSSION

{6} Defendant argues that there was sufficient evidence presented at trial to support an instruction on mistake of fact, and, as such, he was denied his right to present a defense when the district court refused to give his instruction on mistake of fact. The State responds with two arguments: (1) that there was no evidence as to any belief of Defendant, including a belief he was in the room he paid for when the police arrived, a belief indicating why he broke into that room, or whether he thought he had permission to break into that room, altogether resulting in insufficient evidence to warrant an instruction on mistake of fact; and (2) that breaking and entering is a general intent crime, and as such, "[t]he jury was not required to find a specific mental state as an element" but, instead, the general intent instruction sufficiently instructed the jury as to the requisite mental state necessary to commit breaking and entering, making a mistake-of-fact instruction unnecessary.

{7} As to the lesser-included offense instruction, Defendant argues that the district court misapprehended the law in reading the crime of criminal trespass with damage to require that the damage occur after entry onto the property. The State argues that the language of the jury instruction for criminal trespass with damage, UJI 14-1403 NMRA, and the committee commentary thereto, support the district court's holding. We address the arguments in turn.

Standard of Review

{8} "The propriety of jury instructions is a mixed question of law and fact." State v. Romero, 2005-NMCA-060, ¶ 8, 137 N.M. 456, 112 P.3d 1113. "When considering a defendant's requested instructions, we view the evidence in the light most favorable to the giving of the requested instruction[s]." Id. Viewing the facts in that manner, we review the issue de novo. Id. "When evidence at trial supports the giving of an instruction on a defendant's theory of the case, failure to so instruct is reversible error." State v. Brown, 1996-NMSC-073, ¶ 34, 122 N.M. 724, 931 P.2d 69.

The District Court Erred in Refusing to Instruct on Mistake of Fact

1. Sufficient Evidence Supported Giving the Instruction

{9} Defendant argues that the district court erred in refusing to instruct on mistake of fact. The State argues that the evidence was insufficient to show that Defendant had an honest and reasonable belief that he was in the correct room or that he went into the wrong room by mistake. The State also argues that the jury was not required to find a specific mental state as an element of breaking and entering, and that the general intent instruction that was given to the jury was adequate. In addition, the State argues that its case offered no evidence that Defendant thought he had permission to "break into either room." This latter argument is off-issue. The issue is not whether Defendant believed that he had permission to break into a room, but whether he believed he had permission to enter the room, because the lack of permission to enter is an element of breaking and entering. See UJI 14-1410 NMRA (defining, in part, that one element of breaking and entering to be proved is that "[t]he defendant entered [the structure] without permission" (emphasis added)).

{10} Generally, a mental state can be proved by circumstantial evidence. See State v. Martinez, 2006-NMSC-007, ¶ 16, 139 N.M. 152, 130 P.3d 731 (stating that circumstantial evidence of intent may be considered); State v. Frank, 92 N.M. 456, 458, 589 P.2d 1047, 1049 (1979) ("Intent is subjective and is almost always inferred from other facts in the case."); State v. Brenn, 2005-NMCA-121, ¶ 24, 138 N.M. 451, 121 P.3d 1050 ("Intent is usually established by circumstantial evidence."). "If the State may prove a defendant's state of mind through circumstantial evidence, then common sense dictates that a defendant may attempt to prove his state of mind through circumstantial evidence as well." Williams v. State, 1996 OK CR 16, 915 P.2d 371, 376. Evidence supporting a defense theory can be introduced in either the defendant's case or the State's case. State v. Mantelli, 2002-NMCA-033, ¶ 16, 131 N.M. 692, 42 P.3d 272.

{11} The evidence in favor of giving the mistake-of-fact instruction in the present case includes that defendant was very intoxicated; Defendant paid for a room and was thus authorized to enter a room; nothing was stolen; Defendant took his shoes off and was in the bathroom in Room 121, from which it can be inferred that he was using the room as one for which he had paid; Defendant's key card for Room 125 was on the ground outside near Room 121, from which it can be inferred that he had attempted to use it to enter Room 121; and the key card did not have a room number on it. Viewing this evidence in the light most favorable to giving a mistake-of-fact instruction, a reasonable jury could conclude that Defendant believed that he...