State v. Parvilus

CourtSupreme Court of New Mexico
Citation332 P.3d 281
Docket NumberNo. 33,970.,33,970.
PartiesSTATE of New Mexico, Plaintiff–Petitioner, v. Gerard B. PARVILUS, Defendant–Respondent.
Decision Date31 July 2014

332 P.3d 281

STATE of New Mexico, Plaintiff–Petitioner,
Gerard B. PARVILUS, Defendant–Respondent.

No. 33,970.

Supreme Court of New Mexico.

July 31, 2014.

[332 P.3d 282]

Gary K. King, Attorney General, James W. Grayson, Assistant Attorney General, Nicole Beder, Assistant Attorney General, Santa Fe, NM, for Petitioner.

Robert E. Tangora, L.L.C., Robert E. Tangora, Santa Fe, NM, for Respondent.


DANIELS, Justice.

{1} Over a century ago, the New Mexico Territorial Legislature enacted a civil marital property statute, now codified as NMSA 1978, Section 40–3–3 (1907), recognizing rights of married women to hold separate property but providing that “neither [husband nor wife] can be excluded from the other's dwelling.” In this criminal case based on events that occurred in 2008, a jury found Defendant Gerard Parvilus guilty of aggravated burglary of his estranged wife's separate dwelling, murder of her boyfriend, first-degree kidnapping of his wife and her boyfriend, aggravated assault of his wife, and interference with communications. The district court granted Defendant's motion for judgment notwithstanding the verdict and vacated the aggravated burglary conviction because of Defendant's claimed unrestricted right under Section 40–3–3 to make an unconsented entry into his wife's separate residence. The Court of Appeals affirmed the district court's ruling, and we granted certiorari. State v. Parvilus, 2013–NMCA–025, ¶ 47, ––– N.M. ––––, 297 P.3d 1228, cert. granted,2013–NMCERT–002, ––– N.M. ––––, 300 P.3d 132.

{2} We hold that Section 40–3–3 does not preclude a conviction for burglary of a spouse's separate dwelling, and we reverse the contrary rulings of both lower courts.


{3} After a tumultuous two years of marriage marked by violence, infidelity, and bitter fights about divorce and child custody, Defendant and his wife, Jahaira Parvilus, finally decided that Jahaira would move out of their marital home and into a separate apartment with their two-year-old son. Prior to their physical separation, Defendant had threatened to kill himself and became increasingly violent and jealous—slapping Jahaira, breaking a medicine cabinet, and at least once threatening to use a gun.

{4} In January 2008, Defendant rented a separate apartment in Alamogordo for his wife and moved her belongings and some of his own into the apartment while she was out of town. Defendant lived at the apartment briefly and was initially listed as an occupant on the lease. When Jahaira returned to Alamogordo later that month, the couple visited the leasing office together and signed documents establishing that she would be the sole leaseholder of the new apartment. Defendant then turned over his keys to the apartment to his wife and in the first week of February left for South Korea, where he was serving a tour of duty with the Air Force. While Jahaira was driving him to the airport, Defendant punched the dashboard and kicked the windshield until it broke.

{5} Less than a week after Defendant left for South Korea, Jahaira's lover, Pierre Smith, began staying with her in the apartment. On February 17, Jahaira called Defendant and disclosed that she had been pregnant with Smith's child and recently got an abortion. Though Defendant already knew of Smith and had previously sent an e-mail message to Jahaira that he wanted to kill Smith, he grew increasingly despondent about the abortion and the affair. On February 20, Defendant went absent without leave from his base in South Korea and flew home without telling his wife.

{6} After arriving in Alamogordo, Defendant rented a motel room and called his wife after midnight to find out when she would be working the next day. The following morning, Defendant bought a gun, a utility knife, and a screwdriver, later testifying that he intended to break into his wife's apartment while she was at work, obtain some of his legal documents, and then kill himself.

{7} At his wife's apartment, Defendant left his gun in the car and approached the apartment with the utility knife and screwdriver. While crawling through the bedroom window,

[332 P.3d 283]

Defendant encountered Smith, who was alone in the bathroom. Defendant bound Smith with tape, questioned him about the affair, and eventually removed the tape. The two men then drove to Defendant's motel. Inside the motel room, Defendant killed Smith by stabbing him to death.

{8} Defendant then went back to his wife's apartment and waited inside for her to get home. Jahaira testified that when she arrived at her apartment, Defendant surprised her, pointed a gun at her, called her a “fucking bitch,” and hit her on the head with the gun. Defendant interrogated Jahaira about their son's true biological father and about sex acts she had committed with Smith. Defendant then showed her Smith's shredded T-shirt and shorts and told her to look in the kitchen for her knife, which was missing. After threatening to kill himself, Defendant forced Jahaira to wear a hat to cover her bleeding head wound and then drove her to the motel at gunpoint to see Smith's body. After viewing the body and arguing with Jahaira about whether Defendant would kill her, kill himself, kill them both, or escape to Mexico, Defendant ultimately decided to surrender to the New Mexico State Police.

{9} At his jury trial, Defendant was convicted of murder in the second degree, two counts of kidnapping in the first degree, aggravated burglary, aggravated assault, and interference with communications. In order to convict Defendant of aggravated burglary of his wife's apartment, the jury had to find that his entry into the apartment was unauthorized. SeeNMSA 1978, § 30–16–4 (1963) (“Aggravated burglary consists of the unauthorized entry of any ... dwelling.”); see alsoUJI 14–1632 NMRA (including unauthorized entry among the essential elements of aggravated burglary). The district court granted Defendant's motion for judgment of acquittal notwithstanding the verdict on the burglary conviction, agreeing with Defendant that Section 40–3–3 precluded conviction based on an entry into a spouse's dwelling.

{10} Both parties appealed to the Court of Appeals, which affirmed the judgment of the district court. Parvilus, 2013–NMCA–025, ¶¶ 1, 47, –––N.M. ––––, 297 P.3d 1228. The Court concluded that Section 40–3–3 allows a spouse to enter the other spouse's separate dwelling without permission, even upon entry with the intention to commit a felony. Parvilus, 2013–NMCA–025, ¶ 23, ––– N.M. ––––, 297 P.3d 1228. The Court of Appeals recognized that “[i]nter-spousal burglary commonly leads to domestic violence” but determined that Section 40–3–3 precludes prosecution for burglary between spouses. Parvilus, 2013–NMCA–025, ¶ 23, ––– N.M. ––––, 297 P.3d 1228. Although it acknowledged that its holding “provides immunity to someone who burglarizes the residence of an estranged spouse,” the Court concluded that “it is for the Legislature to determine whether to amend the statute to eliminate this immunity.” Id.

{11} We granted the State's petition for writ of certiorari to review the precedential statutory interpretation issue. Parvilus, 2013–NMCERT–002, ––– N.M. ––––, 300 P.3d 132.


{12} This case requires that we address the relationship between two statutes, one criminal and the other civil. The criminal statute provides,

Aggravated burglary consists of the unauthorized entry of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, with intent to commit any felony or theft therein and the person either:

A. is armed with a deadly weapon;

B. after entering, arms himself with a deadly weapon;

C. commits a battery upon any person while in such place, or in entering or leaving such place.

Whoever commits aggravated burglary is guilty of a second...

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5 cases
  • State v. Holt
    • United States
    • Court of Appeals of New Mexico
    • April 27, 2015
    ...“statutes relating to the same general topic should be interpreted in light of each other [.]” State v. Parvilus, 2014–NMSC–028, ¶ 16, 332 P.3d 281. As discussed in more detail below, we rely on the burglary statute, NMSA 1978, § 30–16–3 (1971), as an aid in our interpretation because of it......
  • Burke v. Mesniaeff
    • United States
    • Connecticut Supreme Court
    • December 17, 2019
    ...evaluate the totality of the circumstances in determining whether a defendant had license or privilege to enter"); State v. Parvilus , 332 P.3d 281, 283, 286 (N.M. 2014) (upholding defendant's burglary conviction, despite statute providing that "neither [spouse] can be excluded from the oth......
  • State v. Jackson
    • United States
    • Court of Appeals of New Mexico
    • September 12, 2018
    ...30-52-1(A)(2). {4} Statutory interpretation presents "a question of law that we review de novo." State v. Parvilus , 2014-NMSC-028, ¶ 15, 332 P.3d 281. When interpreting statutes, we seek "to give effect to the intent of the Legislature." Id. ¶ 15 ; State ex rel. Helman v. Gallegos , 1994-N......
  • State v. Jackson, A-1-CA-37074
    • United States
    • Court of Appeals of New Mexico
    • December 10, 2019
    ...briefs which are unsupported by cited authority will not be reviewed . . . on appeal."); cf. State v. Parvilus, 2014-NMSC-028, ¶ 24, 332 P.3d 281 (concluding that a defendant who entered his wife's separate dwelling was lawfully convicted of aggravated burglary).{9} Concerning Defendant's i......
  • Request a trial to view additional results

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