State v. Parvilus

Decision Date08 February 2013
Docket NumberNo. 30,379.,30,379.
Citation297 P.3d 1228
PartiesSTATE of New Mexico, Plaintiff–Appellant/Cross–Appellee, v. Gerard B. PARVILUS, Defendant–Appellee/Cross–Appellant.
CourtCourt of Appeals of New Mexico


Gary K. King, Attorney General, Margaret McLean, Assistant Attorney General, Santa Fe, NM, for Cross–Appellee.

Robert E. Tangora, L.L.C., Robert E. Tangora, Santa Fe, NM, for Cross–Appellant.


FRY, Judge.

{1} Defendant was convicted of second degree murder, kidnapping (one count of first degree and one count of second degree), aggravated burglary, aggravated assault, and interference with communications. Defendant entered his estranged wife's apartment without permission, kidnapped his wife's paramour, and killed the paramour. Later, Defendant also kidnapped and assaulted his wife. On Defendant's motion for judgment of acquittal notwithstanding the verdict, the district court vacated the conviction for aggravated burglary on the basis of a statute providing that [n]either husband nor wife ... can be excluded from the other's dwelling.” NMSA 1978, § 40–3–3 (1907). The State appeals from this ruling, and Defendant cross-appeals, asserting several errors related to jury instructions, sufficiency of the evidence, denial of a motion for mistrial, and the alleged unconstitutional vagueness of our kidnapping statute. We affirm.


{2} In March 2007, Defendant was a non-commissioned officer in the Air Force, stationed in Korea. Defendant's wife (Wife) was also in the Air Force and volunteered for a temporary deployment in Kuwait, where she began an affair with Victim, a military police officer. Wife ultimately admitted the affair to Defendant but told him that she was not going to continue the relationship with Victim. Over a period of several months in late 2007 and early 2008, Defendant and Wife discussed the possibility of getting divorced.

{3} Wife returned to Alamogordo, New Mexico, in January 2008. Victim joined her there, and they resumed their affair. In February 2008, Wife revealed to Defendant that she had become pregnant with Victim's child and that she had an abortion. A few days later, Defendant went AWOL, flew from Korea to El Paso, Texas, and drove to Alamogordo, where he checked into a motel.

{4} The following day, Defendant bought a screwdriver and a box cutter to use in breaking into Wife's apartment, and he also purchased a handgun.1 Defendant drove to Wife's apartment and, leaving the handgun in the car, he crawled in through an open window, whereupon he discovered Victim in the bathroom. Defendant retrieved a handgun from a closet and confronted Victim. Defendant then bound Victim with duct tape and proceeded to interrogate Victim. Following this conversation, Defendant cut the duct tape from Victim.

{5} Victim and Defendant drove to the motel where Defendant was staying and went to Defendant's room. According to Defendant's testimony, Victim insisted on accompanying him to the motel because he believed that Wife had lied to both Victim and Defendant. Also according to Defendant, after the two men entered the motel room, Defendant placed the guns and the knife on one of the beds and began to talk to Victim, whereupon Victim grabbed one of the guns and pointed it at Defendant. Defendant testified that he feared he was about to be shot, so he stabbed Victim to death.

{6} Defendant then returned to Wife's apartment. Wife testified that when she arrived at the apartment, Defendant accosted her and struck her in the head with a handgun, forced her to drive to the motel, and showed her Victim's body in the motel room. According to Defendant, he accidentally hit Wife in the head with the gun and she voluntarily accompanied him to the motel. Soon after, Defendant drove with Wife to the office of the New Mexico State Police and turned himself in.

{7} Following a trial, the jury found Defendant guilty of second degree murder, two counts of kidnapping, aggravated burglary, aggravated assault, and interference with communications. Defendant moved for a judgment of acquittal notwithstanding the verdict, arguing in part that his entry into Wife's apartment was not unauthorized, as required by the burglary statute, because Section 40–3–3 provides that neither spouse can exclude the other from the spouse's dwelling. The district court agreed and vacated Defendant's conviction for aggravated burglary. The State appeals from this determination, and Defendant cross-appeals, raising several other issues.

DISCUSSION1. The State's Appeal

{8} The State argues that the district court improperly vacated Defendant's conviction for aggravated burglary. In order to find Defendant guilty of aggravated burglary, the jury had to find, among other elements,that Defendant's entry into Wife's apartment was unauthorized. SeeNMSA 1978, § 30–16–4 (1963) (stating that [a]ggravated burglary consists of the unauthorized entry of any ... dwelling” when the person is either armed with a deadly weapon, arms himself with a deadly weapon once inside, or commits a battery on a person in the place entered). The district court determined that Defendant's entry into Wife's apartment was not unauthorized in light of Section 40–3–3, titled “Separation of property; admission to dwelling of spouse[,] which states: “Neither husband nor wife has any interest in the property of the other, but neither can be excluded from the other's dwelling.”

{9} “Statutory interpretation is an issue of law, which we review de novo.” State v. Duhon, 2005–NMCA–120, ¶ 10, 138 N.M. 466, 122 P.3d 50. “Our primary goal when interpreting statutory language is to give effect to the intent of the [L]egislature.” State v. Torres, 2006–NMCA–106, ¶ 8, 140 N.M. 230, 141 P.3d 1284. We do this by giving effect to the plain meaning of the words of [a] statute, unless this leads to an absurd or unreasonable result.” State v. Marshall, 2004–NMCA–104, ¶ 7, 136 N.M. 240, 96 P.3d 801.

{10} We have no case law explaining the Legislature's intent in 1907 when it enacted Section 40–3–3, but the State surmises that it was an aspect of the married women's property statutes that were enacted in most states in the late nineteenth and early twentieth centuries as “part of a national campaign to sweep away the common law web of limitations and disabilities which had entangled a married woman's rights to own and dispose of property.” See Jane M. Keenan, Comment, The End of an Era: A Review of the Changing Law of Spousal Burglary, 39 Duq. L. Rev. 567, 570 (2001) (internal quotation marks and citation omitted). This supposition is bolstered by the fact that at the same time it enacted Section 40–3–3, our Legislature enacted several other statutes addressing the issue of married women's property rights. See, e.g.,NMSA 1978, § 40–2–1 (1907) (stating that [h]usband and wife contract toward each other obligations of mutual respect, fidelity and support”); NMSA 1978, § 40–2–2 (1907) (explaining contract rights of husband and wife); NMSA 1978, §§ 40–2–4 to –7 (1907, as amended through 1973) (explaining execution and recording of marriage settlement and separation contracts); NMSA 1978, §§ 40–2–8 to –9 (1907) (describing the extent to which husband and wife can contract to alter their legal relationship and consideration for such a contract); NMSA 1978, § 40–3–1 (1907) (stating that [t]he property rights of husband and wife are governed by this chapter”); NMSA 1978, § 40–3–2 (1907) (stating how husband and wife may hold property).

{11} If the State is correct in theorizing that Section 40–3–3 was enacted as part of broader legislation addressing the property rights of married women, this theory does not aid us much in determining whether the statute has the effect of limiting the reach of our criminal burglary statutes when the burglar and the burglary victim are married to each other. If we focus on the statute's language, it appears that its reach is fairly broad. First, the statute does not appear to contemplate preservation of one “marital home” from which neither spouse can be excluded. Instead, the statute states that neither husband nor wife “can be excluded from the other's dwelling. Id. (emphasis added). This language suggests that, even if husband and wife maintain separate residences, neither can exclude the other spouse. Second, there are no limitations of any kind placed on this blanket prohibition against exclusion. As a result, estrangement of the spouses or the many forms of having possession of a residence appear to have no impact on the prohibition.

{12} Through the lens of this sweeping prohibition against spousal exclusion, we consider the burglary statutes and our courts' interpretation of those statutes. Our Supreme Court recently discussed at length the history and purpose of our existing burglary statutes in State v. Office of the Public Defender, ex rel. Muqqddin, 2012–NMSC–029, 285 P.3d 622. The Court noted that New Mexico case law has stated that “the purpose of our burglary statute is to protect possessory rights with respect to structures and conveyances, and to define prohibited space.” Id. ¶ 40 (internal quotation marks and citations omitted). The Court stated that [c]hief among the possessory interests that burglary is designed to protect is the right to exclude. Id. ¶ 41 (emphasis added). The Court went on to state that [t]his right to exclude has been described as perhaps the most fundamental of all property interests.” Id. (internal quotation marks and citation omitted).

{13} The Court's focus on the right to exclude dovetails with Section 40–3–3 insofar as Section 40–3–3 appears to eliminate either spouse's right to exclude the other spouse from the first spouse's dwelling. Therefore, the plain language of Section 40–3–3 appears to render inter-spousal burglary an impossibility. Applied to the facts in this case, Section 40–3–3 prohibited Wife from...

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