State v. Jones

Opinion

The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23-

112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.

1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 2 Opinion Number: 3 Filing Date: July 15, 2025 4 NO. S-1-SC-39949

5 STATE OF NEW MEXICO, 6 Plaintiff-Appellee, 7 v.

8 JOSEPH MATTHEW GREGORY JONES, 9 Defendant-Appellant.

10 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 11 T. Glenn Ellington, District Judge

12 Bennett J. Baur, Chief Public Defender 13 Thomas J. Lewis, Assistant Appellate Defender 14 Santa Fe, NM

15 for Appellant

16 Raúl Torrez, Attorney General 17 Peter James O’Connor, Assistant Solicitor General 18 Santa Fe, NM

19 for Appellee 1 OPINION 2 VARGAS, Justice. 3 {1} The primary question presented by this case is one of statutory interpretation 4 examining whether a portal is a prohibited space under New Mexico’s aggravated 5 burglary statute, NMSA 1978, Section 30-16-4 (1963). This Section provides in 6 relevant part that “[a]ggravated burglary consists of the unauthorized entry of any 7 . . . dwelling or other structure, movable or immovable, with intent to commit any 8 felony or theft therein.” Id. The portal 1 at issue is a covered porch in the backyard of 9 a house that is open to the elements on two sides. The circumstances giving rise to 10 this question arose when Robert Romero (Victim) caught Defendant Joseph 11 Matthew Gregory Jones in his backyard in the middle of the night, allegedly 12 attempting to burglarize Victim’s home. A struggle ensued, culminating in 13 Defendant shooting Victim in the backyard. 14 {2} Defendant was charged in relevant part with aggravated burglary and felony 15 murder. At trial, Defendant did not contest that he was the intruder, instead filing a

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We use portal throughout to refer to the architectural feature common in New Mexico, defined as “[a] covered entryway or porch-like structure leading into a home, a church, or a public building—sometimes quite elaborate. Also may refer to a covered patio attached to a home.” The Guide to New Mexico Architecture, available at https://nmarchitectureguide.org/glossary/ (last visited July 9, 2025).

1 motion for directed verdict on the grounds that he never entered a prohibited space 2 that would support the underlying aggravated burglary charge under Section 30-16- 3 4. The district court denied Defendant’s motion, and Defendant was ultimately 4 convicted of aggravated burglary and felony murder. After receiving a life sentence, 5 Defendant exercised his right to appeal directly to this Court. See N.M. Const. art. 6 VI, § 2 (“Appeals from a judgment of the district court imposing a sentence of death 7 or life imprisonment shall be taken directly to the supreme court.”). 8 {3} He raises three issues on appeal: (1) whether the unenclosed portal is a 9 structure under the aggravated burglary statute;2 (2) whether the district court erred 10 in inserting the word “portal” into the aggravated burglary jury instruction; and (3) 11 whether the district court erred in admitting evidence of guns, ammunition, and other 12 accessories unconnected to the murder weapon or the shooting that were recovered 13 in Defendant’s possession nearly two years later. 14 {4} For the reasons that follow, we conclude the district court erred in denying 15 Defendant’s motion for directed verdict because the portal is not a prohibited space 16 under the aggravated burglary statute. Accordingly, we vacate Defendant’s

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Defendant at times refers to the burglary statute, NMSA 1978, Section 30-

16-3 (1971), rather than the aggravated burglary statute, Section 30-16-4. Because Defendant was convicted of aggravated burglary and the language at issue is identical in both statutes, we refer hereinafter to the aggravated burglary statute.

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1 convictions for felony murder and aggravated burglary. As we explain, however, the 2 State may elect to reprosecute Defendant on the same or lesser charges without 3 violating double jeopardy. Defendant’s second issue with respect to the jury 4 instructions is rendered moot by our conclusion that the portal is not a protected 5 structure under Section 30-16-4, and we need not address it. Finally, addressing the 6 evidentiary issue to provide guidance in the event it arises on remand, we conclude 7 the district court erred in admitting evidence of Defendant’s possession of guns, 8 ammunition, and accessories unconnected to the shooting, as this evidence was 9 irrelevant. 10 I. BACKGROUND 11 A. Facts 12 {5} Shortly before 2:00 a.m. on the night of July 30, 2018, Victim’s wife awoke 13 to a crash, and heard Victim frantically call her name from the backyard of their 14 home. When Victim’s wife opened the door to their backyard, she saw her husband 15 struggling with an intruder. The intruder was wearing a gray hoodie that was 16 cinched, revealing only dark eyes and eyebrows. After Victim yelled for his wife to 17 get help, she ran back in the house to call the police. Shortly before Victim’s wife 18 attempted to call the police, she heard a gunshot. After hearing the gunshot, she

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1 rushed back outside to find Victim slumped over a small retaining wall just beyond 2 the portal. 3 {6} Police arrived shortly thereafter but were unable to locate the suspect. A 4 number of relevant items, however, were left at the scene of the crime. These items— 5 in addition to testimony by the Victim’s wife—would ultimately serve as the primary 6 evidence tying Defendant to the crime. Police found a trash can turned upside-down 7 pushed up against the gate on the side of the yard, which Defendant concedes “was 8 presumably the means by which the intruder gained access to [Victim’s] back yard.” 9 A bullet casing was recovered in the gravel between the retaining wall and the portal. 10 Expert testimony would later tie this casing to the murder weapon that killed Victim. 11 Police found a flashlight left by Defendant further out in the yard near a gas grill. 12 Victim’s wife also found a pair of prescription eyeglasses, picked them up and took 13 them inside the house, and later gave them to police. The exact location where the 14 glasses were found is unclear. Upon examination of the doors, windows, and other 15 areas, police discovered no evidence that Defendant attempted to enter the home 16 itself. 17 {7} Nearly two years later, utilizing DNA recovered from the eyeglasses and the 18 flashlight, police found a match in a genealogy database. During a subsequent search 19 of Defendant’s apartment, police found a bag that contained three handguns,

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1 ammunition, and a myriad of gun accessories and magazines. One of the guns in the 2 bag, a Glock .357 (the murder weapon), was connected via ballistic analysis to the 3 bullet that killed Victim. The other two guns were also pistols: a Ruger .9 millimeter 4 and a Browning .380. Police also found a gray hoodie that Defendant had modified 5 to fit snugly around his face and an eyeglass prescription Defendant concedes 6 matched the eyeglasses recovered from the scene of the crime. 7 B. Procedural History 8 {8} Defendant was charged with aggravated burglary and felony murder. 9 Defendant filed a motion for directed verdict, contending that he never entered a 10 prohibited space that would support the underlying aggravated burglary charge 11 under Section 30-16-4. The district court orally denied Defendant’s motion, first 12 reasoning that the back portal was “visually” part of the dwelling; that the stucco 13 was the same color as the house; and that the portal was covered and had a hard 14 surface floor with entrances to the interior of the home from the portal. Later in its 15 ruling, the district court noted that the portal “does not have a set physical barrier,” 16 and the facts could be viewed in such a manner to support “that, although not 17 completely confined, the occupants have an expectation of privacy and quiet 18 enjoyment in the use of their portal.”

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1 {9} A closer examination of the district court’s ruling reveals uncertainty with 2 respect to the scope of the prohibited space under the aggravated burglary statute. 3 At one point, the district court appeared to indicate that the portal was the outer 4 boundary of the space protected under the statute. Immediately thereafter, however, 5 the district court stated that “the portal—that space—does not have a set physical 6 barrier, the visible barrier is the retaining wall immediately behind the portal made 7 up of what appears to be moss rock, and then there is a small gravel path or area off 8 of the hard surface slab” between the retaining wall and the covered portion of the 9 portal. This second statement suggests that the district court viewed the prohibited 10 space under the statute to extend beyond the portal itself, up to the point of the 11 retaining wall. This ambiguity resulted in an unclear ruling as to what precisely 12 constituted a prohibited space as contemplated by the aggravated burglary statute in 13 a case where the homicide took place somewhere between the retaining wall that 14 was just beyond the portal and the home itself. 15 {10} Ultimately, after the district court denied the motion for a directed verdict, 16 Defendant was convicted of aggravated burglary and felony murder. The district 17 court sentenced Defendant to life imprisonment, and Defendant appealed. See N.M. 18 Const. art. VI, § 2.

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1 II. DISCUSSION 2 A. The Portal Is Not a Structure Under the Aggravated Burglary Statute 3 {11} While Defendant provides a framework for both insufficiency of the evidence 4 and statutory interpretation for legal error, it is uncontested Defendant does not 5 develop any argument that his conviction must be reversed for insufficient 6 evidence—i.e., that “the state’s evidence failed to establish beyond a reasonable 7 doubt some or all of the factual elements of the offense charged.” State v. Revels, 8 2025-NMSC-021, ¶ 27, ___P.3d ___ (text only)3 (citation omitted). Indeed, the 9 State acknowledges that “Defendant does not contest any of the evidence presented 10 —neither at trial nor on appeal.” Instead, Defendant’s challenge focuses on the 11 construction of New Mexico’s aggravated burglary statute, alleging that a portal is 12 not a structure as that term is used in Section 30-16-4. 13 1. Standard of review 14 {12} Statutory construction is a question of law subject to de novo review. State v. 15 Off. of Pub. Def. ex rel. Muqqddin, 2012-NMSC-029, ¶ 13, 285 P.3d 622 (explaining 16 that construing New Mexico’s burglary statute is a matter of statutory construction

The parenthetical “(text only)” indicates the omission of nonessential

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punctuation marks—including internal quotation marks, ellipses, and brackets—that are present in the text of the quoted source, leaving the quoted text otherwise unchanged.

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1 that this Court reviews de novo); see also State v. Mestas, 2016-NMCA-047, ¶ 8, 2 370 P.3d 805 (“In considering [the d]efendant’s argument that his conduct is outside 3 the scope of that described to be burglary . . . , we review the district court’s denial 4 of [the d]efendant’s motion for a directed verdict de novo.”). 5 2. History of burglary in New Mexico: Foulenfont and Muqqddin 6 {13} Both the State and Defendant rely almost exclusively upon State v. 7 Foulenfont, 1995-NMCA-028, 119 N.M. 788, 895 P.2d 1329, and Muqqddin, 2012- 8 NMSC-029. We, therefore, provide a brief overview of each case to contextualize 9 the parties’ arguments. 10 {14} In Foulenfont, the defendants climbed a chain-link fence surrounding a 11 business that sold mobile homes. 1995-NMCA-028, ¶ 2. The Court of Appeals was 12 required to consider whether a fence “constitute[d] a ‘structure’ under our burglary 13 statute.” Id. ¶ 1 (citation omitted). In affirming the district court’s dismissal of the 14 charges, the Court of Appeals concluded that the fenced area was not a structure 15 under New Mexico’s burglary statute. Id. ¶¶ 1, 10. It reasoned that, “unlike a fence, 16 all of the enumerated objects in the statute are capable of completely confining 17 people and their property.” Id. ¶ 11. Finally, it rejected the state’s contention that the 18 mobile home business was receiving disparate treatment due to the fact that it 19 “operate[d] in an outdoor setting.” Id. ¶ 12. Rather, the Court of Appeals explained,

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1 “[t]he burglary statute would be applicable if [the d]efendants had made an 2 unauthorized entry into an office or a mobile home.” Id. But “[w]here the 3 unauthorized entry merely consists of climbing over a fence, businesses and other 4 open property are protected under our criminal trespass statute.” Id. 5 {15} In Muqqddin, the Court addressed whether puncturing the gas tank of a van in 6 one case or removing the rear wheels of a car in another fell under the burglary 7 statute. 2012-NMSC-029, ¶¶ 7, 11. More broadly, Muqqddin served as a vessel for 8 the Court to convey serious concern regarding the unprecedented judicial expansion 9 of the outer limits of what amounts to protected space under the burglary statute— 10 “an expansion that has occurred without any parallel change in the statute.” Id. ¶ 1. 11 After a thorough examination of New Mexico’s burglary jurisprudence, common- 12 law origins, and legislative intent, we concluded “that our case law has gone astray, 13 and that we must alter our course.” Id. In reversing the convictions in that case, id., 14 we provided a roadmap of principles to consider when examining whether a 15 particular space is prohibited under New Mexico’s burglary statute. We consider 16 these principles while remaining mindful that, “[f]irst and foremost, what is being 17 punished as a felony under Section 30-16-3 is a harmful entry.” Muqqddin, 2012- 18 NMSC-029, ¶ 60.

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1 {16} Of particular relevance here is the requirement that a space be enclosed to 2 qualify as a structure. Muqqddin explained that, “in order for an area to be considered 3 prohibited space under Section 30-16-3, it must have some sort of enclosure” 4 because “[i]t is the nature of the enclosure that creates the expectation of privacy. 5 Enclosure puts the public on notice.” Id. ¶¶ 44-45. In other words, courts examine 6 the physical nature of the space at issue to discern whether it qualifies as a structure 7 under the burglary or aggravated burglary statutes. See Mestas, 2016-NMCA-047, ¶ 8 27 (“The crucial question in determining whether an area is protected is whether or 9 not its physical characteristics create an ‘[e]nclosure [that] puts the public on 10 notice.’” (quoting Muqqddin, 2012-NMSC-029, ¶ 45 (alterations in original))). 11 Muqqddin relied upon Foulenfont in reaching its conclusion, reasoning that “[e]ach 12 of the enumerated structures in Section 30-16-3 either inherently has, or has been 13 interpreted to require, some sort of enclosure. Accordingly, we believe it is this 14 enclosed space that the Legislature intended to protect.” Muqqddin, 2012-NMSC- 15 029, ¶ 44. 16 {17} Crucially, in considering the outer boundaries of a structure, Muqqddin also 17 rejected the imaginary plane theory, which “allow[s] a burglary charge to stand 18 whenever a defendant ‘breaks the close’ of a structure, meaning the defendant 19 crosses some imaginary plane created by some portion of a structure that is by its

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1 nature open to the elements.” Id. ¶ 46 (citation omitted). We rejected the theory in 2 part because, in addition to a lack of notice, “the concept of an imaginary plane is 3 ambiguous, creating more questions than it answers and [is] subject to prosecutorial 4 abuse.” Id. ¶ 47. We provided an example highlighting such ambiguity by applying 5 the invisible plane theory to a house—“Would the close of a house extend from the 6 eaves to the foundation, such that stealing a shutter, obviously attached to the outside 7 requiring no entry of the house itself, becomes a burglary?” Id. In contrast with the 8 ambiguity that comes with an open structure that is “by its nature open to the 9 elements,” we clarified that our “reasoning does not apply to such things as an open 10 window” because “[a] window . . . creates an opening in an enclosure . . . . As such, 11 a burglary can be committed through an open window.” Id. ¶¶ 46, 48. 12 {18} Finally, in Muqqddin, we cautioned against relying upon burglary 13 jurisprudence from other jurisdictions without examining whether a statute in 14 another jurisdiction “differs so greatly from ours that it serves a different purpose.” 15 Id. ¶ 28. We provided one case—State v. Gonzales, 2008-NMCA-146, 145 N.M. 16 110, 194 P.3d 725—as an example of such a flawed analysis. Muqqddin, 2012- 17 NMSC-029, ¶ 28. The structure in Gonzales, which Muqqddin described as an open- 18 air porch attached to a commercial building with a concrete floor and a roof that is 19 open on three sides, is sufficiently similar to the portal here that it is necessary to

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1 clarify Muqqddin’s treatment of Gonzales. Id. ¶¶ 22, 28. The Muqqddin Court 2 explained that Gonzales was flawed because it relied upon a case from Georgia, even 3 though the “Georgia statute indicat[es] that a structure or a part of a structure can 4 be burglarized, an addition that is absent from New Mexico’s statute.” Id. (referring 5 to Gonzales’s reliance on Garrett v. State, 578 S.E.2d 460 (Ga. Ct. App. 2002)). 6 {19} For the reasons that follow, we clarify that, even though Muqqddin did not 7 explicitly overrule Gonzales, it has little, if any, remaining precedential value. The 8 Court of Appeals’ holding in Gonzales that the open-air porch constituted a structure 9 conflicts with Muqqddin, which explains that entering “some portion of a structure 10 that is by its nature open to the elements” is not burglary in New Mexico. Muqqddin, 11 2012-NMSC-029, ¶ 46. Further, the Gonzales Court relied upon State v. Rodriguez, 12 1984-NMCA-034, ¶¶ 4-7, 101 N.M. 192, 679 P.2d 1290, abrogated by Muqqddin, 13 2012-NMSC-029, ¶ 38—a case that endorsed the imaginary plane theory in holding 14 that the open bed of a pickup truck was a prohibited space under the burglary statute. 15 See Gonzales, 2008-NMCA-146, ¶ 8 (discussing these facts of, and relying upon, 16 Rodriguez). We concluded in Muqqddin that Rodriguez is no longer good law. See 17 2012-NMSC-029, ¶ 38. Ultimately, the Muqqddin Court identified Gonzales as one 18 of the cases in which the Court of Appeals significantly expanded the reach of the 19 burglary statute without legislative authorization, which, in turn, supported this

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1 Court’s conclusion that our precedent had “gone astray” such that a course correction 2 was necessary. Id. ¶¶ 1, 22. As a result, we do not rely upon the faulty analysis 3 applied in Gonzales.4 4 3. Post-Muqqddin precedent 5 {20} We have not had occasion to provide guidance squarely addressing the outer 6 limits of what qualifies as protected space under the burglary or aggravated burglary 7 statutes since Muqqddin. Nevertheless, in State v. Holt, 2016-NMSC-011, 368 P.3d 8 409, we relied upon Muqqddin in the context of breaking and entering. Precedent 9 from our Court of Appeals, though not binding on this Court, likewise supports and 10 is consistent with our mandate set forth in Muqqddin establishing that first and

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The dissent, in ¶ 85, contends that Muqqddin critiqued Gonzales, but ultimately endorsed its result. We disagree. Nothing in the Muqqddin opinion suggests the Muqqddin Court endorsed the result in Gonzales, and we will not read language into Muqqddin that does not exist. Indeed, if Muqqddin intended to critique the approach of Gonzales while endorsing the result, it certainly could have done so, as it did with a different Gonzales case in the same opinion. See 2012-NMSC-029, ¶¶ 30-31. The dissent further contends that “Gonzales is sufficiently analogous . . .

to support that the portal here is a structure.” Dissent ¶ 83. But the dissent offers nothing from our jurisprudence supporting the result reached in Gonzales, a case that is not binding on this Court. Importantly, we note that the State did not rely upon Gonzales, 2008-NMCA-146, in its briefing before the Court. Indeed, at oral argument, the State asserted that Gonzales “doesn’t seem to make a difference” in this case. It is not our practice to promulgate law without argument from the parties, and we decline to do so here. See generally Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53.

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1 foremost courts must examine the physical characteristics of a space to discern 2 whether it qualifies as a structure. See, e.g., Mestas, 2016-NMCA-047, ¶ 27. 3 {21} In Holt, the question at issue was whether there was an unauthorized entry, 4 not whether the home was a structure. See 2016-NMSC-011, ¶ 1. Holt is therefore 5 of limited value here. See Dominguez v. State, 2015-NMSC-014, ¶ 16, 348 P.3d 183 6 (“[T]he general rule is that cases are not authority for propositions not considered.” 7 (internal quotation marks and citation omitted)). Nevertheless, we briefly address 8 Holt to highlight that it defined the boundary of the home in a manner consistent 9 with the structural mandates set forth in Foulenfont and Muqqddin. Contra dissent ¶ 10 81 (suggesting that Holt embraced an abandonment of portions of Foulenfont). In 11 discerning whether the entry in Holt was unauthorized, we relied upon Muqqddin to 12 reiterate that courts examine the physical nature of the structure to define the outer 13 boundary of an enclosure. Holt, 2016-NMSC-011, ¶¶ 14, 17. Based on this approach, 14 we concluded that “putting one’s fingers behind a window screen affixed to a 15 residential dwelling is an intrusion into an enclosed, private, prohibited space” 16 because a window screen provides protection against unauthorized intrusion. Id. ¶ 17 18. Put simply, the window screen, along with the rest of the secured home, was 18 capable of completely confining people and their property; the screen formed a 19 sufficiently sealed-off enclosure that put the public on notice.

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1 {22} Mestas is likewise consistent with Muqqddin and the principles we set forth 2 today. In Mestas, the Court of Appeals considered whether a clerk’s office in a hotel 3 was an enclosure under the burglary statute. 2016-NMCA-047, ¶¶ 2, 3, 24. Quoting 4 Muqqddin, it reiterated that “[t]he crucial question in determining whether an area is 5 protected is whether or not its physical characteristics create an ‘[e]nclosure [that] 6 puts the public on notice.’” Mestas, 2016-NMCA-047, ¶ 27 (quoting Muqqddin, 7 2012-NMSC-029, ¶ 45 (alterations in original)). It relied upon Foulenfont to support 8 that in order for a space to be enclosed under Muqqddin, it “must be ‘capable of 9 completely confining people and their property.’” Mestas, 2016-NMCA-047, ¶ 24 10 (quoting Foulenfont, 1995-NMCA-028, ¶ 11). The Mestas Court called upon this 11 language throughout the opinion, from start to finish. See, e.g., id. ¶ 2 (stating that 12 “[a] mechanized ‘shutter’ or ‘shield’ was built into a recess in the ceiling above the 13 counter, allowing employees to completely enclose the desk area (thereby preventing 14 any access from the lobby)” (emphasis added)); id. ¶ 22 (“The clerk’s office was 15 designed to remain separate from the public lobby area: the only way to enter was 16 through a locked door or over a chest-high counter that could be completely shut 17 with a retractable barrier.” (emphasis added)); id. ¶ 25 (“Here, the clerk’s office 18 was capable of completely confining the motel clerk, his desk, and the locked drawer 19 containing cash: a locked door prevented access from the lobby, and the opening

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1 above the chest-high counter could be closed and secured. In short, the enclosure’s 2 physical characteristics were such that a reasonable person would expect some 3 protection from unauthorized intrusions.” (emphasis added) (internal quotation 4 marks and citation omitted)). If any confusion remained as to what the Mestas Court 5 meant when it stated that the office in that case was capable of completely confining 6 people and their property, it used different terms to reiterate that “[t]he chest-high 7 counter separating the public hotel lobby from the otherwise sealed-off clerk’s area 8 was sufficient to create such an enclosure and put the public on notice that it was 9 off-limits.” Id. ¶ 27 (alteration in original) (emphasis added). 10 {23} In State v. Shelby, 2021-NMCA-064, 499 P.3d 671, the defendant did not 11 contest whether the home was a structure. Instead, the defendant contended that (1) 12 the home was not a dwelling because the interior of the home was under 13 construction, (2) it did not have electricity or running water, and (3) the house was 14 not sufficiently used as living quarters to qualify as a dwelling. See id. ¶ 1. Shelby, 15 like Holt, is therefore of limited value here. See Dominguez, 2015-NMSC-014, ¶ 16 16 (“[T]he general rule is that cases are not authority for propositions not considered.” 17 (internal quotation marks and citation omitted)); contra dissent ¶¶ 71, 81 (relying 18 upon Shelby and suggesting that it abandoned Foulenfont). Nevertheless, Shelby 19 abided by the principle that a structure must be fully enclosed or sealed-off in a

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1 manner consistent with our opinion today. Shelby cited Mestas to support its view 2 that, “under Muqqddin, we must examine the physical characteristics of an area to 3 determine whether the space is private, enclosed, or sealed-off from public entry and 4 protected by the burglary statute.” Shelby, 2021-NMCA-064, ¶ 8 (emphasis added) 5 (citing Mestas, 2016-NMCA-047, ¶ 27). It described the home in that case as having 6 a “fully finished and secure exterior,” id. ¶ 16, as having “a screened-in porch, 7 enclosed with a roof, walls, doors, windows, and locks,” id. ¶ 12. Put simply, the 8 home was enclosed—sealed-off in a way that put the public on notice that it was a 9 prohibited space. While the dissent highlights the interior furnishing of the space, 10 dissent ¶ 72, the Shelby Court concluded that “the degree to which [the v]ictim 11 moved his possessions into the house or the degree to which the interior of the house 12 is finished are not necessarily the most significant considerations in this case because 13 the house had a fully finished and secure exterior and it was actually used as living 14 quarters.” 2021-NMCA-064, ¶ 16 (emphasis added). Indeed, the common thread 15 apparent in Muqqddin and subsequent precedent is not how the space was being used 16 but the requirement that the space be enclosed. See enclose, Merriam-Webster’s 17 Collegiate Dictionary (11th ed. 2020) (“to close in: surround (enclose a porch with 18 glass)”).

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1 {24} While the dissent suggests that these post-Muqqddin cases and indeed 2 Muqqddin itself establish an attempt to somehow “reinterpret” Foulenfont or 3 abandon Foulenfont’s inquiry that a structure must be capable of completely 4 confining people and their property, we believe our analysis sufficiently explains 5 why that is not the case. See dissent ¶ 81 (suggesting that Holt recognized a 6 “reinterpretation of Foulenfont”); id. ¶¶ 79-81 (suggesting that post-Muqqddin 7 precedent largely abandoned the Foulenfont requirement that a space must be 8 “‘capable of completely confining people and their property’” in order to qualify as 9 a structure (quoting Foulenfont, 1995-NMCA-028, ¶ 11)). Indeed, Mestas alone 10 disproves this point, explicitly relying upon Foulenfont and stating no less than four 11 separate times that the space there was either capable of being completely confined 12 or was sealed-off. See Mestas, 2016-NMCA-047, ¶¶ 2, 22, 24, 25, 27. Contra dissent 13 ¶ 81. The result is that post-Muqqddin precedent remains consistent in requiring that 14 a space be fully enclosed to qualify as a structure and, in contrast with each of these 15 cases and the dictionary definition, the dissent does not explain how a portal that is, 16 as here, completely open on two sides could qualify as being fully enclosed or 17 “sealed-off” like the clerk’s office in Mestas or either of the homes in Shelby and 18 Holt.

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1 4. The portal is not a structure 2 {25} Here, the portal does not qualify as a prohibited space under New Mexico’s 3 aggravated burglary statute because it plainly is not “capable of completely 4 confining people and their property.” Foulenfont, 1995-NMCA-028, ¶ 11. 5 Therefore, whether we analyze the portal under the statute’s “dwelling” or its “other 6 structure,” the portal would not qualify as a prohibited space under even the broadest 7 reading of the statute; it is not a structure. See § 30-16-4 (listing certain structures, 8 including a “dwelling,” and providing a catchall for “other structure[s]”); see also 9 UJI 14-1631 NMRA (defining a “dwelling house” as “any structure, any part of 10 which is customarily used as living quarters” (emphasis added)). Rather, the portal 11 is more like “some portion of a structure that is by its nature open to the elements,” 12 which is not a prohibited space under our case law. See Muqqddin, 2012-NMSC- 13 029, ¶¶ 46-47. Even under a generous interpretation of the facts, as the State 14 construes them, a portal with two open sides would not qualify as a structure 15 because, again, those two sides cannot be enclosed or sealed-off in any way. See 16 Foulenfont, 1995-NMCA-028, ¶ 11 (“[U]nlike a fence, all of the enumerated objects 17 in the statute are capable of completely confining people and their property.” 18 (emphasis added)); accord Mestas, 2016-NMCA-047, ¶¶ 22, 25 (concluding that an 19 office in a motel was a structure under the burglary statute because “the only way to

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1 enter was through a locked door or over a chest-high counter that could be 2 completely shut with a retractable barrier”). 3 {26} In other words, under the facts of this case, there was simply no way to close 4 off the two sides of the portal that were open to the elements in a way that would 5 provide any meaningful distinction between (1) trespass by jumping the fence into 6 the backyard and (2) crossing the imaginary plane into the portal that, if we were to 7 affirm the district court, would constitute aggravated burglary. See Muqqddin, 2012- 8 NMSC-029, ¶ 46 (rejecting the imaginary plane theory that would “allow a burglary 9 charge to stand whenever a defendant . . . crosses some imaginary plane created by 10 some portion of a structure that is by its nature open to the elements”); Foulenfont, 11 1995-NMCA-028, ¶ 12 (explaining that the criminal trespass statute rather than 12 burglary applies “[w]here the unauthorized entry merely consists of climbing over a 13 fence”). Accordingly, a conclusion that the portal itself is a structure would 14 contradict our rejection of the invisible plane theory in Muqqddin. As the district 15 court itself stated, the portal “does not have a set physical barrier,” and it is “not 16 completely confined.” Therefore, the portal does not satisfy the requirements set 17 forth in Foulenfont and Muqqddin because Defendant necessarily is being punished 18 for crossing an invisible plane when the portal is plainly open to the elements on two 19 sides with no physical barrier.

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1 {27} To shore up its conclusion that the portal is a protected space under the 2 aggravated burglary statute, the district court noted that the facts could be viewed to 3 support that “the occupants have an expectation of privacy and quiet enjoyment in 4 the use of their portal.” But that is not the test. The Legislature defines aggravated 5 burglary, in relevant part, as “the unauthorized entry of any . . . dwelling or other 6 structure”—not of every space where an occupant has an expectation of privacy. 7 Section 30-16-4. Therefore, contrary to the district court’s reasoning, we clarify that 8 an expectation of privacy alone does not transform a space into one that is protected 9 under the aggravated burglary statute. “[B]urglary’s original purpose, the protection 10 of the security of habitation,” remains relevant, Muqqddin, 2012-NMSC-029, ¶ 34, 11 but “burglary has a greater purpose than merely protecting property,” id. ¶ 39. 12 Instead, our burglary statutes “aim to protect against the feeling of violation and 13 vulnerability that occurs when a burglar invades one’s personal space.” Id. ¶ 43. We 14 recognized in Muqqddin that “[o]ne does not have the same feeling of personal 15 violation when gas has been siphoned from our vehicle or when someone steals a 16 wheel as we do when an intruder has been in our home or office rifling through our 17 most intimate and treasured belongings.” Id. While more intrusive than siphoning 18 gas, similarly, here, we recognize that the intrusion into a portal, like an intrusion 19 into any unenclosed porch, stoop, or other space adjacent to one’s home, does not

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1 invoke the same degree of violation or fear as that which occurs when a burglar 2 invades the interior of one’s home such as the living room or bedroom—the “most 3 intimate” of spaces. Id. And we emphasize that unauthorized entry of a portal is 4 punishable under other statutes. See id. ¶ 40 (“The law [against burglary] was not 5 designed solely to deter trespass and theft, as those are prohibited by other laws.”). 6 Our conclusion is consistent with the Legislature’s authority to define crimes as it 7 sees fit and accordingly honors its choice not to include one’s unenclosed backyard 8 as a space that can be burglarized. See id. ¶¶ 37, 50 (concluding that “[i]t is for the 9 Legislature alone to define statutory criminal acts” and explaining that it is a 10 significant factor in our analysis if the criminal acts charged are punished as “lesser 11 crimes”). 12 {28} Put simply, it is the physical barrier of the structure that creates the expectation 13 of privacy, not the other way around. Id. ¶¶ 44-45 (explaining that “it is th[e] 14 enclosed space that the Legislature intended to protect[;] . . . [i]t is the nature of the 15 enclosure that creates the expectation of privacy”); see also Holt, 2016-NMSC-011, 16 ¶¶ 17-18 (concluding that “putting one’s fingers behind a window screen affixed to 17 a residential dwelling is an intrusion into an enclosed, private, prohibited space . . . 18 [because i]t is reasonable for the citizens of New Mexico to expect that their window 19 screens afford them protection from unauthorized intrusions”). Accordingly, we

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1 hold that the unauthorized entry of the portal is not within the scope of “unauthorized 2 entry of any . . . dwelling or other structure” as defined in Section 30-16-4, and we 3 reaffirm that the focus is whether the physical nature of the structure is sufficiently 4 enclosed such that a reasonable person would expect protection from unauthorized 5 entry. See Muqqddin, 2012-NMSC-029, ¶ 45. The portal contained no screen, door, 6 or other barrier that a reasonable person would expect to provide some level of 7 protection from unauthorized intrusion or communicate to another person that the 8 space is prohibited for purposes of the aggravated burglary statute. 9 {29} Instead, the district court’s difficulty in defining the structure serves as an 10 example of the ambiguity this Court warned of in Muqqddin. At times, the district 11 court appeared to rule that the portal was the outer limit of the structure under the 12 statute, and at other times it ruled that the structure extended beyond the portal itself, 13 at least to the retaining wall beyond the portal. See Muqqddin, 2012-NMSC-029, ¶ 14 47 (explaining that “the concept of an imaginary plane is ambiguous, creating more 15 questions than it answers and [encouraging] prosecutorial abuse”). This ambiguity 16 and uncertainty as to where the structure begins and ends—especially in a case where 17 the homicide took place somewhere between the retaining wall and the home— 18 highlights the precise concerns expressed in Muqqddin.

24

1 {30} As a point of illustration, the district court concluded that—although it had no 2 physical barrier, was not a confined space, and was “an extra room outside” of the 3 house—the portal was nonetheless a structure because it had outdoor patio furniture 4 and the district court heard testimony that it was an extension of the living space. If 5 we were to define a statutorily prohibited space by a victim’s furnishings or 6 subjective testimony with respect to the use of the space, as the district court did 7 here, victims who spend most of their time outside but who cannot afford to purchase 8 patio furniture may only receive the protection of trespass, whereas victims who 9 have the means to furnish their patio but may not spend any time on the patio would 10 receive the protection of the burglary statute. This uncertainty would likely result in 11 a fact-intensive inquiry based upon testimony from each victim, as opposed to the 12 approach outlined under Muqqddin, which objectively examines whether the 13 structure is an enclosure capable of protecting from intrusion. See Muqqddin, 2012- 14 NMSC-029, ¶ 45 (explaining that “[t]he proper question is whether the nature of a 15 structure’s composition is such that a reasonable person would expect some 16 protection from unauthorized intrusions” (internal quotation marks and citation 17 omitted)). We decline to follow such an inequitable and uncertain approach. See id. 18 ¶ 47.

25

1 {31} Muqqddin also teaches that “courts must be cognizant of the disparity in 2 potential penalties that can stem from a burglary charge due to its unique place in 3 our jurisprudence.” Id. ¶ 62. There, the Court examined the potential disparity 4 between the burglary of a commercial building or the passenger space of a vehicle 5 and attempting to steal gasoline by puncturing a hole in the tank of a car. Id. ¶¶ 62- 6 63. Here, a disparity would result if we interpreted the statute to punish entering the 7 most intimate of spaces, such as a living room or bedroom, the same as climbing 8 over a gate in a backyard, the entry the State contends constitutes aggravated 9 burglary in this case. Accordingly, this disparity likewise counsels in favor of a 10 conclusion that the portal is not a prohibited space. 11 {32} Nonetheless, even if we were to view the portal as an “other structure” that is 12 not specifically enumerated in the aggravated burglary statute—as the district court 13 appeared to do at times—the rule of ejusdem generis also supports our conclusion 14 that the portal is not a prohibited space. See § 30-16-4 (“Aggravated burglary 15 consists of the unauthorized entry of any vehicle, watercraft, aircraft, dwelling or 16 other structure.” (emphasis added)). Ejusdem generis provides “that where general 17 words follow an enumeration of persons or things of a particular and specific 18 meaning, the general words are not construed in their widest extent but are instead 19 construed as applying to persons or things of the same kind or class as those

26

1 specifically mentioned.” Muqqddin, 2012-NMSC-029, ¶ 29 (text only) (citation 2 omitted). That is, any other structure that is not specifically enumerated must contain 3 “an enclosure similar to a vehicle, watercraft, aircraft, or dwelling, and not just a 4 fenced-in area.” Id. (text only) (citation omitted). Here, the portal itself does not 5 include a gate, screen, door, or other feature that would aid in fully enclosing the 6 space. Therefore, to conclude that the portal is a structure under the aggravated 7 burglary statute would require us to construe the portal in such a broad manner that 8 it would contradict the statutory class of items because “all of the enumerated objects 9 in the statute are capable of completely confining people and their property.” See 10 Foulenfont, 1995-NMCA-028, ¶ 11. As the portal is not capable of completely 11 confining people or property, we cannot reach such a conclusion. 12 {33} Finally, it is a bedrock precept of the law that a crime “must be defined with 13 appropriate definiteness.” State v. Bybee, 1989-NMCA-071, ¶ 12, 109 N.M. 44, 781 14 P.2d 316 (quoting Pierce v. United States, 314 U.S. 306, 311 (1941)). As a result, 15 even if we were uncertain as to whether the portal constituted a structure under the 16 aggravated burglary statute, such uncertainty clearly raises “serious doubts as to 17 whether the Legislature intended to punish [Defendant’s] actions as [aggravated] 18 burglary. Under the rule of lenity, that ambiguity must be resolved in” Defendant’s 19 favor. Muqqddin, 2012-NMSC-029, ¶ 58. We reaffirm that, “[i]f the Legislature

27

1 wants to expand burglary, blur the lines between crimes, and create overlaps, then it 2 should be left to the Legislature to do so. But in the absence of such legislative 3 action, trial courts and prosecutors should exercise caution in the use of judicial 4 power to act as surrogates for that which the Legislature has not done.” Id. ¶ 63. 5 {34} At its core, the dissent suggests that a structure for purposes of the burglary 6 and aggravated burglary statutes should be governed by an individual’s subjective 7 expectation of privacy rather than the physical nature of the space, upon which an 8 objectively reasonable person would expect protection from unauthorized intrusion. 9 Dissent ¶¶ 55, 58. We find this approach unworkable and unsupported by precedent. 10 Notably, the dissent’s interpretation of the burglary statue represents an expansion 11 without legislative authorization to include any space that an individual subjectively 12 believes to be private. This interpretation ignores the requirement that crimes must 13 be sufficiently defined such that a person receives notice of what is illegal, and what 14 is not. See Pierce, 314 U.S. at 311 (“[J]udicial enlargement of a criminal act by 15 interpretation is at war with a fundamental concept of the common law that crimes 16 must be defined with appropriate definiteness.”); accord Muqqddin, 2012-NMSC- 17 029, ¶¶ 47-49 (“Without . . . legislative guidance, the courts should not be placed in 18 the position of inventing fictions to expand the definition of criminal activity. . . . 19 This is not the first time our courts have cautioned against the continued expansion

28

1 of the crime of burglary without legislative license.”). Indeed, “[i]f the Fourteenth 2 Amendment is violated when a person is required to speculate as to the meaning of 3 penal statutes . . . or to guess at (the statute’s) meaning and differ as to its application, 4 . . . the violation is that much greater when, because the uncertainty as to the statute’s 5 meaning is itself not revealed until the court’s decision, a person is not even afforded 6 an opportunity to engage in such speculation before committing the act in question.” 7 Bouie v. City of Columbia, 378 U.S. 347, 352 (1964) (internal quotation marks and 8 citations omitted). 9 {35} Under the dissent’s view, a person would have no opportunity to even engage 10 in speculation as to a victim’s subjective expectation of privacy before committing 11 the act in question, which the dissent suggests governs whether entering a particular 12 space is a crime. Dissent ¶¶ 55, 58-59, 70 (“[T]he expectation of privacy and the 13 security of the inhabitant should govern this analysis” rather than the nature of the 14 structure, which the dissent relegates to a mere “architectural tool”). Applying the 15 dissent’s rationale, the meaning of the “structure” requirement contained within the 16 aggravated burglary statute would not be revealed until a victim testifies at trial and 17 expresses their view of privacy, which inevitably varies person to person, city to 18 city. Furthermore, in the unfortunate circumstance where a victim has been killed or 19 otherwise incapacitated and no one else is available to testify, it is unclear how the

29

1 state would establish the inhabitant’s subjective expectation of privacy. Such a 2 standard is not only unworkable—it raises constitutional concerns that cannot be 3 overcome. See Bouie, 378 U.S. at 351. (“‘[A] statute which either forbids or requires 4 the doing of an act in terms so vague that [people] of common intelligence must 5 necessarily guess at its meaning and differ as to its application violates the first 6 essential of due process of law[.]’ . . . ‘No one may be required at peril of life, liberty 7 or property to speculate as to the meaning of penal statutes. All are entitled to be 8 informed as to what the State commands or forbids.’” (citation omitted)). Under this 9 same analysis, we disagree with the dissent’s view that whether a space is a structure 10 prohibited by the burglary statute is a question for the jury. See dissent ¶ 89. 11 {36} As a final but important note, none of the cases upon which the dissent relies 12 support that an individual’s subjective expectation of privacy governs the analysis. 13 For example, in Holt, we did not focus on whether the victim thought the space at 14 issue was private in order to discern whether it was a structure that could be entered. 15 See generally 2016-NMSC-011, ¶¶ 17-19. Nor did the Court in Muqqddin examine 16 whether there was sufficient testimony to support the subjective expectation of 17 privacy with respect to the gas tank or tires. In Mestas, a case the dissent heavily 18 relies upon, the Court of Appeals engaged in no discernable analysis as to whether 19 the hotel clerk subjectively believed the space was a structure. Instead, it focused on

30

1 the physical characteristics of the space to discern whether it was a structure within 2 the scope of the burglary statute. See 2016-NMCA-047, ¶ 27 (“The crucial question 3 in determining whether an area is protected is whether or not its physical 4 characteristics create an enclosure that puts the public on notice.” (text only) 5 (emphasis added) (citation omitted)); id. ¶ 25 (“[T]he enclosure’s physical 6 characteristics were such ‘that a reasonable person would expect some protection 7 from unauthorized intrusions.’” (emphasis added) (quoting Muqqddin, 2012- 8 NMSC-029, ¶ 45)); id. ¶ 29 (relying upon “the physical attributes of the clerk’s area” 9 in upholding the defendant’s convictions (emphasis added)). Put simply, the test is 10 whether the physical composition of the structure is such that an objectively 11 “‘reasonable person would expect some protection from unauthorized intrusions,’” 12 rather than the subjective expectations of the individual. Muqqddin, 2012-NMSC- 13 029, ¶ 45 (citation omitted); accord Holt, 2016-NMSC-011, ¶ 16 (explaining that 14 the relevant expectation of “‘privacy and the victim’s feeling of being personally 15 violated’” under the modern burglary statute “extends to all enclosed, private, 16 prohibited spaces.” (emphasis added) (citation omitted)). With this perspective in 17 mind, we proceed to address the State’s arguments to support that the portal is a 18 structure under the aggravated burglary statute.

31

1 5. The State’s arguments are unpersuasive 2 {37} Foulenfont, according to the State, is distinguishable on two grounds: (1) the 3 space at issue in Foulenfont was a commercial property, and (2) unlike the portal, a 4 fence “surrounding an open air storage yard is not” an enclosure under the burglary 5 statute. First, the Court of Appeals in Foulenfont did not distinguish between 6 commercial and residential property. Instead, as discussed above, it distinguished 7 between enclosed and open-air spaces, reasoning that, “unlike a fence, all of the 8 enumerated objects in the statute are capable of completely confining people and 9 their property.” Foulenfont, 1995-NMCA-028, ¶ 11. And, in contrast with the State’s 10 second contention that the nature of the property as an “open air storage yard” 11 controlled the Foulenfont Court’s analysis, the Court rejected the notion that the 12 mobile home business was receiving disparate treatment due to the fact that it 13 “operate[d] in an outdoor setting.” Id. ¶ 12. Rather, the Court of Appeals explained, 14 “The burglary statute would be applicable if [the d]efendants had made an 15 unauthorized entry into an office or a mobile home.” Id. 16 {38} As to Muqqddin, the State largely avoids grappling with the legal principles 17 established by this Court, instead contending that the case is factually distinguishable 18 because “here the portal is not an open-air space or property left in the open to public 19 purview.” In further attempting to distinguish Foulenfont and Muqqddin, it is clear

32

1 that the State either misunderstands or misconstrues the facts before this Court. For 2 example, as a distinguishing characteristic, the State contends that “there was no 3 artificial plane that required breaking to enter, rather Defendant entered the portal 4 when he climbed over the portal gate” (emphasis added). The State further 5 characterizes the portal as an “enclosed secluded portal with a locked gate.” 6 However, while the backyard was gated-in, it is clear upon review of the evidence 7 that the portal itself does not include a gate, nor was it enclosed under our case law. 8 Rather, photographic evidence establishes that the portal was completely open on 9 two sides. The district court recognized as much, stating that the portal did “not have 10 a set physical barrier,” and that it was “not completely confined.” Therefore, the 11 State’s conclusion that the portal was enclosed or that Defendant committed burglary 12 when he jumped into the backyard is inconsistent with the facts and our case law. 13 {39} Finally, the State quotes State v. Lara, 1978-NMCA-112, ¶ 5, 92 N.M. 274, 14 587 P.2d 52, to support that the portal “was burglarized by Defendant because it 15 ‘was part of the structure used as living quarters.’” Lara is of limited value here 16 because it addressed whether a garage was part of the house when it was attached to 17 and shared an interior wall with the house but “there was no direct access to the 18 interior of the house.” Id. ¶ 6. Therefore, the Lara Court addressed whether the lack 19 of a direct entry into the home meant that the garage failed to qualify as a structure,

33

1 not whether the garage was sufficiently enclosed to constitute a prohibited space 2 under the burglary statute. Indeed, there is no dispute here that the portal contained 3 two doors leading directly into the house. Accordingly, Lara provides little guidance 4 as the question here—whether the portal was sufficiently enclosed—was not present 5 in Lara. 6 {40} Unpersuaded by the State’s arguments, we conclude that the portal is not a 7 structure. Accordingly, we must vacate Defendant’s aggravated burglary and felony 8 murder convictions.

9 6. Retrial is permitted on felony murder and any legally adequate predicate 10 felony

11 {41} In light of our conclusion that Defendant’s convictions for aggravated 12 burglary and felony murder must be vacated, we must consider whether double 13 jeopardy bars retrial. “Double jeopardy law governs the circumstances under which 14 the state can prosecute a defendant a second time.” Revels, 2025-NMSC-021, ¶ 15 19. When a defendant is acquitted, retrial is barred. Id. ¶¶ 19, 23. “An acquittal 16 occurs on appeal when an appellate court reverses for insufficient evidence, 17 because that is tantamount to a finding that the [s]tate’s evidence failed to 18 establish beyond a reasonable doubt the factual elements of the offense charged.” 19 Id. ¶ 20. As the State acknowledged in its briefing before the Court, however, 20 Defendant does not contest any of the evidence presented to support the offenses.

34

1 {42} Instead, Defendant’s sole argument is that the portal is not a structure under 2 the aggravated burglary statute as a matter of law. “Appellate reversal on any 3 grounds other than evidentiary insufficiency is considered reversal for trial error,” 4 which does not bar a retrial because “it implies nothing with respect to the guilt or 5 innocence of the defendant. Rather, it is a determination that a defendant has been 6 convicted through a judicial process which is defective.” Id. ¶ 21 (internal quotation 7 marks and citation omitted). Under such a circumstance, “the accused has a strong 8 interest in obtaining a fair readjudication of his guilt free from error, just as society 9 maintains a valid concern for insuring that the guilty are punished.” Id. (internal 10 quotation marks and citation omitted). Indeed, Defendant conceded at oral argument 11 that remand for a new trial is a viable remedy and requested such relief in his briefing 12 before this Court. Because we vacate Defendant’s convictions for aggravated 13 burglary and felony murder on the basis of trial error, the direct-remand rule5 does 14 not apply, and “the State may elect to reprosecute him on th[ose] charge[s] if the 15 State determines it can proceed on the basis of a legally adequate predicate felony.”

Defendant asserts that “this Court has authority to remand for an entry of

5

judgment on [a] lesser included offense,” thus invoking the direct-remand rule. But, as we clarified in Revels, the direct-remand rule only allows an appellate court to “‘order resentencing on an adequately proven lesser included offense’” when it reverses on the basis of insufficient evidence, not trial error. ¶¶ 42, 48 (citation omitted).

35

1 Id. ¶ 48; accord id. ¶ 38 (concluding that reversal for trial error permits “retrial on 2 the same or lesser charge”). 3 B. Defendant’s Jury Instruction Argument Is Moot 4 {43} Next, Defendant contends that the district court committed reversible error 5 when it inserted the word “portal” into the jury instruction for aggravated burglary. 6 The substance of Defendant’s argument is the same as what he presented under the 7 first issue—that a portal is not a structure under the aggravated burglary statute. For 8 example, Defendant argues that “the district court’s addition of ‘portal’ to the 9 burglary instruction resulted in impermissibly broadening the reach of the burglary 10 statute beyond what the [L]egislature intended.” He similarly argues that the district 11 court “amended the UJI in a way contrary to this Court’s emphasis on enclosure in 12 its analysis of burglary in Muqqddin.” Given our conclusion that the portal in this 13 case is not a structure under the aggravated burglary statute, the issue is rendered 14 moot; thus, we need not address it further. City of Las Cruces v. El Paso Elec. Co., 15 1998-NMSC-006, ¶ 18, 124 N.M. 640, 954 P.2d 72 (explaining that, as a general 16 matter, we do not decide moot issues and we will not render advisory opinions). 17 C. Evidentiary Error 18 {44} Finally, Defendant alleges that the district court erred under Rule 11-403 19 NMRA and 11-404(B)(2) NMRA in admitting the guns unrelated to the shooting as

36

1 well as evidence of boxes of ammunition, accessories, and other items unconnected 2 to the murder weapon or the shooting. Even though we vacate Defendant’s 3 convictions on other grounds, we “address this issue to provide guidance” in the 4 event “the issue arises on remand.” State v. Alvarez-Lopez, 2004-NMSC-030, ¶ 37, 5 136 N.M. 309, 98 P.3d 699; accord State v. Samora, 2016-NMSC-031, ¶ 36, 387 6 P.3d 230. 7 1. Preservation and standard of review 8 {45} Defendant preserved the alleged error through (1) filing a motion in limine 9 and (2) objecting to the State’s proffered evidence under Rule 11-404(B). Defendant 10 objected to the introduction of the unrelated firearms and other ammunition because 11 the evidence only connected the murder weapon to the crime—thus, the other items 12 “are not relevant to the current incident and would be highly prejudicial to 13 [D]efendant.” Defendant made largely the same argument at a pretrial hearing on 14 the motion, reiterating that the evidence was unrelated propensity evidence that 15 should not be admitted. The standard of review for a preserved challenge to the 16 admission of evidence under Rules 11-403 and 11-404(B) is an abuse of discretion. 17 See State v. Romero, 2019-NMSC-007, ¶ 26, 435 P.3d 1231. The district court’s 18 decision to admit or exclude evidence is generally “within the sound discretion of 19 the trial court, and its determination will not be disturbed on appeal in the absence

37

1 of an abuse of discretion.” Id. “In testing the balance between the relevant probative 2 value and prejudicial effect of evidence under Rule 11-403, an abuse of discretion 3 results when the trial court’s decision is contrary to logic and reason.” Id. (text only) 4 (citation omitted). 5 2. The district court’s ruling and trial 6 {46} The district court ruled:

7 With respect to relevance, the court finds that the [murder weapon] that 8 was recovered . . . is relevant. The court finds that the circumstances 9 under which it was found is also relevant and material, that it was 10 located in an inner bag, which was within an outer bag, and that there 11 was ammunition. . . . The court finds also relevant the existence of a 12 second barrel for the .9 millimeter [gun] as well as a second barrel for 13 the .357 [murder weapon]. It looks like the .380 [gun], other than that 14 it was found there [at the apartment] is . . . nothing to indicate that it 15 had been modified, as the argument I understand the State’s argument 16 that the .357 [murder weapon] was [modified], and that the capacity to 17 also modify the .9 millimeter as he also had those components, so other 18 than mention that it was found with the two other firearms, I don’t think 19 there is anything else relevant about that firearm, but . . . the court will 20 allow the testimony as to the circumstance under which the search 21 warrant was executed, and the firearms were located, how they were 22 packaged . . . but the court over objection would allow the 404(B) 23 evidence with respect to those objects.

24 By contrast, the district court excluded evidence of any flashlights recovered from 25 the search, concluding that it was “propensity-type evidence.” It excluded portable 26 tool kits, reasoning that there was no evidence that any tool was used to gain entry. 27 It excluded gloves because “there is nothing that ties it to the crime.” Finally, it

38

1 excluded a notebook that contained a handwritten list of addresses (that did not 2 include Victim’s address) because “it takes a leap, which is based on innuendo or 3 propensity as to what the other addresses meant.” 4 {47} At trial, the State admitted physical evidence in addition to many dozens of 5 photos of the other guns and accessories, as well as hours of witness testimony 6 discussing the evidence—evidence that it never connected to the crime. 7 3. The State’s argument on appeal 8 {48} Before this Court, the State’s response to Defendant’s claim of error focuses 9 largely upon Rule 11-404(B)—the same rule on which the State at the district court 10 appeared to concede. At the pretrial hearing on the State’s notice of intent to 11 introduce 11-404(B) evidence, the State “concede[d] [the guns other than the murder 12 weapon] are not appropriate for purposes of 404(B).” On appeal, by contrast, the 13 State argues that “[t]he weapons and accessories showed Defendant’s access to, 14 possession of, and knowledge of the Glock .357 murder weapon, its specialized 15 ammunition, the other weapons and their accessories.” The State’s argument is 16 circular, seeming to suggest that the other two guns and accessories somehow 17 showed access to, possession of, and knowledge of the murder weapon itself. The 18 State does not persuasively explain how possession of one gun shows possession or 19 knowledge of another, unrelated gun. The State outlines the required elements of the

39

1 aggravated burglary and felony murder instructions, but again does not explain how 2 the evidence goes to prove any of the elements of those crimes. Nevertheless, we 3 need not affirmatively address the State’s Rule 404(B) arguments in light of our 4 conclusion that the evidence is irrelevant, which we explain below. But even if the 5 evidence were relevant, we further conclude that the probative value of the evidence 6 is substantially outweighed by the danger of unfairly prejudicing Defendant. 7 4. Admission of the other guns and accessories was error 8 a. Relevance 9 {49} Evidence is only admissible if it is relevant. “Evidence is relevant if . . . it has 10 any tendency to make a fact more or less probable than it would be without the 11 evidence, and . . . the fact is of consequence in determining the action.” Rule 11-401 12 NMRA. In its brief, the State contends that “there is no question as to” the relevance 13 of the evidence if “the prior act evidence goes directly to prove an element of the 14 crime” under Rule 11-402 NMRA and that “the evidence proffered by the State was 15 probative on . . . essential elements of the charged crime” (omission in original) 16 (internal quotation marks and citation omitted). But the State fails to identify a prior 17 act or provide any analysis as to what element of a crime the evidence supports, so 18 we cannot discern how the State believes the other weapons and accessories are

40

1 relevant. And without any evidence tying the other guns or accessories to the crime, 2 it does not make any consequential fact more or less probable under Rule 11-401. 3 {50} On this point Defendant cites two out-of-state cases. Defendant first relies on 4 a provision from Agatheas v. State, 77 So.3d 1232, 1236 (Fla. 2011), in asserting 5 that “in order for evidence of a firearm to be admissible as relevant in a criminal 6 trial, the State must show a sufficient link between the weapon and the crime” (text 7 only) (citation omitted). Agatheas goes on to explain that the general rule applied by 8 appellate courts in Florida “is that if there was no evidence linking any of these 9 firearms to the charged crime, evidence of the firearms would be irrelevant, and 10 should have been excluded upon proper objection.” Id. (internal quotation marks and 11 citation omitted). Defendant also relies upon Alanis v. State, 891 S.W.2d 737, 741 12 (Tex. App. 1994), which similarly provides that “possession of a firearm is 13 admissible only if necessary to understand the facts and circumstances of the present 14 offense of murder.” Defendant relies upon these cases to conclude that “[t]he other 15 guns and accessories had no relationship to the offense other than” for purposes of 16 propensity. 17 {51} We agree with the reasoning provided in these out-of-state cases. Put simply, 18 the two guns and accompanying ammunition introduced in this case—in contrast 19 with the murder weapon and accessories connected to it—are not relevant because

41

1 they do not make any consequential fact more or less probable under Rule 11-401. 2 There is no evidence that Defendant had more than one firearm on the date of the 3 shooting. Victim was shot a single time, and there was only one casing recovered 4 from the scene. That casing matched the Glock .357 murder weapon—not the .9 5 millimeter or the .380. Further, there is no evidence whatsoever that the other two 6 guns or accessories found in the backpack were in Defendant’s possession on the 7 night in question. The State cites no evidence that Defendant was carrying a 8 backpack or tactical bag, which is where the majority of the items were located in 9 the apartment. The State fails to refer the Court to any evidence on appeal 10 establishing that Defendant even owned any of the other guns or accessories on the 11 date of the crime, rather than obtaining them sometime in the two years between the 12 shooting and the subsequent search of Defendant’s apartment. We conclude that the 13 evidence is irrelevant. 14 b. Probative value 15 {52} But even if the State were to establish on remand that the evidence were 16 relevant and otherwise admissible, it may nevertheless be excluded “if its probative 17 value is substantially outweighed by a danger of . . . unfair prejudice.” Rule 11-403. 18 Thus, “[i]f the evidence is probative of something other than propensity,” a court 19 still “balance[s] the prejudicial effect of the evidence against its probative value.”

42

1 State v. Lovett, 2012-NMSC-036, ¶ 32, 286 P.3d 265 (internal quotation marks and 2 citation omitted). Despite acknowledging that Rule 11-403 is pertinent to our 3 admissibility framework, the State on appeal engages in no discernable analysis to 4 assist the Court in determining whether the probative value of the gun evidence was 5 substantially outweighed by its prejudicial effect to Defendant. Defendant takes a 6 similar approach, first noting that he objected at trial under Rule 11-403 and 7 proceeding to briefly argue before this Court that (1) the gun evidence is irrelevant 8 as well as more prejudicial than probative and (2) the evidence was inadmissible 9 propensity evidence under Rule 11-404. Nevertheless, we have no trouble 10 concluding under our precedent that any limited probative value of introducing two 11 unrelated guns and a plethora of unrelated accessories is substantially outweighed 12 by the danger of unfairly prejudicing Defendant. In Casaus v. State, for example, 13 this Court concluded that the prejudicial impact of admitting a gun into evidence, 14 where the record suggested that the gun was not the one used in the crimes charged, 15 outweighed its probative value requiring reversal. See 1980-NMSC-017, ¶¶ 3, 8-9, 16 94 N.M. 58, 607 P.2d 596. Casaus is consistent with this Court’s more recent Rule 17 11-403 precedent. Compare, e.g., State v. Chavez, 2024-NMSC-023, ¶ 35, 562 P.3d 18 521 (concluding that the limited probative value of a single statement in a jail phone 19 call made by defendant was “undoubtedly substantially more prejudicial than

43

1 probative” because the remainder of the statements in the call were pure propensity 2 evidence), with State v. Casillas, S-1-SC-32911, dec. ¶¶ 17, 19, 45 (N.M. May 9, 3 2013) (nonprecedential) (concluding the district court did not err in allowing 4 evidence of the defendant’s prior possession of a gun because it was offered along 5 with fingerprint evidence to establish that the gun itself was the murder weapon, in 6 contrast with, as here, offering the weapon as mere propensity evidence).6 7 Accordingly, the district court erred in admitting the irrelevant and highly prejudicial 8 evidence of the other guns, ammunition, and accessories. 9 III. CONCLUSION 10 {53} For the foregoing reasons, we conclude the district court erred in determining 11 that the portal is a prohibited space under the aggravated burglary statute. We, 12 therefore, vacate Defendant’s convictions for aggravated burglary and felony murder

6

In light of our conclusion here (1) that the gun evidence was irrelevant, and (2) that, even if it were not, the probative value of the evidence is substantially outweighed by the danger of unfairly prejudicing Defendant, we need not address the State’s assertion that the evidence qualifies as a crime, wrong, or other act under Rule 404(B)(2). And even if we were to assume that the evidence were relevant, the State on appeal has presented no evidence of a prior act, only presenting evidence obtained after the crime without tying it to any of Defendant’s prior actions. This is insufficient. We are likewise unpersuaded by the State’s remaining Rule 404 arguments.

44

1 on the basis of such trial error. The State, however, may elect to reprosecute 2 Defendant on the same or lesser charges without violating double jeopardy. 3 {54} IT IS SO ORDERED.

4 5 JULIE J. VARGAS, Justice

6 WE CONCUR:

7 8 MICHAEL E. VIGIL, Justice

9 10 C. SHANNON BACON, Justice

11 12 BRIANA H. ZAMORA, Justice

13 DAVID K, THOMSON, Chief Justice, dissenting

45

1 THOMSON, Chief Justice (dissenting). 2 {55} Our burglary law, first and foremost, requires us to respect an individual’s 3 expectation of privacy and to protect “against the feeling of violation and 4 vulnerability that occurs when a burglar invades one’s personal space.” State v. Off. 5 of Pub. Def. ex rel. Muqqddin, 2012-NMSC-029, ¶¶ 42-43, 285 P.3d 622. Victim 6 was roused shortly before two o’clock in the morning, lying on his couch in his living 7 room, by a suspicious noise. He walked through his back door onto his portal, which 8 was surrounded by his yard and enclosed by a wooden fence, to investigate. There 9 he found Defendant, resulting in Victim’s death and Defendant’s conviction for 10 felony murder that was based on Defendant’s conviction for aggravated burglary. I 11 respectfully dissent because the expectation of privacy and the security of the

46

1 inhabitant should govern this analysis⸺not the architecture of a space, which the 2 majority relied upon to vacate this conviction.7 3 I. DEVELOPMENT OF OUR BURGLARY JURISPRUDENCE 4 {56} “Burglary consists of the unauthorized entry of any vehicle, watercraft, 5 aircraft, dwelling or other structure.” NMSA 1978, § 30-16-3 (1971); see also 6 NMSA 1978, § 30-16-4 (1963) (defining aggravated burglary, the offense at issue 7 in this case, identically in pertinent part). New Mexico courts have struggled to 8 determine which structures can be burglarized. To contextualize the analysis that 9 follows, I summarize several of those key cases.

7

In an effort to discredit the dissent, the majority writes, “[T]he dissent suggests that a structure for purposes of the burglary and aggravated burglary statutes should be governed by an individual’s subjective expectation of privacy rather than the physical nature of the space,” extending statutory protection to “any space that an individual subjectively believes to be private.” See maj. op. ¶ 34. That is incorrect. A careful and considered reading of the dissent makes clear that the inquiry should turn on whether a space invokes the privacy interest the Legislature intended to protect. The dissent endorses several tools to determine whether this privacy interest is invoked: the use of a space, both customarily and by the victim, and the space’s architecture. The dissent does not suggest that any one of these considerations is dispositive. Moreover, in writing “none of the cases upon which the dissent relies support that an individual’s subjective expectation of privacy governs the analysis,” maj. op. ¶ 36, the majority ignores State v. Shelby, 2021-

NMCA-064, 499 P.3d 671, which makes clear that an individual’s actual use of a space is a valid consideration, see paragraphs 66 and 72, infra.

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1 A. Pre-2012: Courts Viewed Burglary as a Crime Against Property and 2 Developed an Architectural Tool to Reign in the Spaces That Could Be 3 Burglarized

4 {57} At common law, burglary “was an offense against the security of habitation 5 or occupancy.” Muqqddin, 2012-NMSC-029, ¶ 16 (internal quotation marks and 6 citation omitted). Our early burglary jurisprudence interpreted the expansion of 7 spaces that could be burglarized beyond the “dwelling” as a shift in legislative intent 8 from protecting the security of habitation to the security of property, identifying new 9 spaces as structures that could be burglarized in the process. See State v. Rodriguez, 10 1984-NMCA-034, ¶¶ 4, 7, 101 N.M. 192, 679 P.2d 1290 (explaining that “[a]t 11 common law, burglary was an offense against the security of habitation or 12 occupancy” but “the statutory offense [was] one against the security of property 13 which is entered” and holding that an uncovered pick-up truck bed was “a part of a 14 vehicle” and thus could be burglarized (internal quotation marks and citations 15 omitted)), abrogated by Muqqddin, 2012-NMSC-029, ¶¶ 38, 40; State v. Gonzales, 16 1967-NMSC-168, ¶¶ 5-6, 78 N.M. 218, 430 P.2d 376 (declining to apply ejusdem 17 generis in interpreting “other structure” to permit the statute to apply to commercial 18 structures, including the food store at issue (internal quotation marks and citation 19 omitted)), abrogated by Muqqddin, 2012-NMSC-029, ¶¶ 30-31.

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1 {58} In 1995, the Court of Appeals delineated the outer boundaries of this 2 expanding list of spaces by deciding a fence was not a structure. See State v. 3 Foulenfont, 1995-NMCA-028, ¶ 1, 119 N.M. 788, 895 P.2d 1329. The Foulenfont 4 Court’s architectural analysis was presented as a tool to help answer the primary 5 question: whether the fence before the Court satisfied the perceived legislative intent 6 behind the burglary statute at that time. See id. ¶ 7. In answering this question, the 7 Court clarified the role of ejusdem generis in our burglary law⸺a structure must be 8 “of the same kind or class as those specifically mentioned”⸺architecturally but not 9 in use. Id. ¶¶ 9, 11. Thus, the appropriate inquiry was whether a space had “one or 10 more walls and a roof” to be “capable of completely confining people and their 11 property.” See id. ¶ 11.

12 B. 2012: This Court in Muqqddin Brought the Burglary Statute Back to Its 13 Purpose of “Protecting Against the Feeling of Violation and Vulnerability 14 When a Burglar Invades One’s Personal Space,” Relaxing the 15 Architectural Tool Used to Aid This Inquiry

16 {59} In Muqqddin, this Court held that a vehicle’s gas tank and wheels were not 17 structures that could be burglarized. 2012-NMSC-029, ¶¶ 5, 9, 12. In doing so, the 18 Court “undert[ook] a review of our burglary jurisprudence” which had “expanded

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1 significantly.” Id. ¶ 1. 8 2 {60} The Muqqddin Court made three points relevant to the analysis of the present 3 case: (1) The core purpose of our burglary statute is “to protect against the feeling 4 of violation and vulnerability that occurs when a burglar invades one’s personal 5 space,” not to protect property, thus redefining the primary inquiry in evaluating 6 whether a space is a structure, (2) architecturally, an individual has an expectation 7 of privacy in a space if it has “some sort of enclosure”⸺but not necessarily more, 8 and (3) burglarizing the vehicle-related spaces at issue would require crossing “an 9 imaginary plane,” a theory the Court declined to adopt. Id. ¶¶ 43-44, 46-47. I explain 10 each of these points in turn. 11 {61} First, the Muqqddin Court explicitly departed from the purpose of the burglary 12 statute as articulated in Rodriguez, 1984-NMCA-034, ¶ 6, and quoted with approval 13 in Foulenfont, 1995-NMCA-028, ¶ 7: “‘to protect possessory rights with respect to 14 structures and conveyances, and to define prohibited space.’” Muqqddin, 2012- 15 NMSC-029, ¶ 40 (quoting Rodriguez, 1984-NMCA-034, ¶ 6). The Court explained 16 that the rights protected by burglary “go beyond the mere right to physical

Pre-2012 burglary jurisprudence was consistent with the idea that structures

8

with one or more walls and a roof could be burglarized, with the exception of vehicle-related cases such as Rodriguez, 1984-NMCA-034. Muqqddin specifically reevaluated this outlier in our burglary law.

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1 possession of an object,” with the primary focus being “the right to exclude” and the 2 related “privacy interest.” Id. ¶¶ 40-42. The Court wrote that “[i]t is the invasion of 3 privacy and the victim’s feeling of being personally violated that is the harm caused 4 by the modern burglar,” explaining that “[t]he privacy interest . . . protect[ed] is 5 related to, though broader than, the security of habitation.” Id. ¶¶ 42-43.9 This 6 privacy interest was not implicated by the facts before the Court. Id. ¶ 43. 7 {62} Second, the Muqqddin Court cited Foulenfont to explain, architecturally, that 8 prohibited space “must have some sort of enclosure” which “creates the expectation 9 of privacy” and “puts the public on notice.” Id. ¶¶ 44-45. Thus, the Court explained 10 that “the proper question is whether the nature of a structure’s composition is such 11 that a reasonable person would expect some protection from unauthorized 12 intrusions.” Id. ¶ 45 (internal quotation marks and citation omitted). Again, the facts 13 before the Court did not meet this requirement. See id. ¶ 46.

9

This is supported by the fact that our burglary statutes classify unauthorized entry into a “dwelling house” as a more serious crime than unauthorized entry into any other structure. Compare § 30-16-3(A) (burglary of a “dwelling house” is a third degree felony), with § 30-16-3(B) (burglary of any other structure is a fourth degree felony); see also State v. Shelby, 2021-NMCA-064, ¶ 8, 499 P.3d 671 (“The plain language and structure of the New Mexico burglary statute makes clear that the Legislature separated the unauthorized entry into a dwelling house from the unauthorized entry into all other structures as a more serious crime subject to greater punishment.”).

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1 {63} Third, the Muqqddin Court rejected “any penetration of a vehicle’s perimeter 2 [as] a penetration of the vehicle itself” because this “imaginary plane” does not put 3 intruders on notice and is inherently ambiguous. 2012-NMSC-029, ¶¶ 46-47. The 4 Court referenced a flat-bed pickup truck and the undulating surface of a vehicle as 5 examples of the nonworkability of an imaginary plane. Id. ¶ 47. The only nonvehicle 6 related example the Court gave to illustrate the faulty theory was enumerated as 7 such: “Would the close of a house extend from the eaves to the foundation, such that 8 stealing a shutter, obviously attached to the outside requiring no entry of the house 9 itself, becomes a burglary?” Id. The Court clarified that this reasoning would not 10 apply to “a window, [which] by its nature, creates an opening in an enclosure.” Id. ¶ 11 48.

12 C. Post-2012: The Court of Appeals and This Court Follow the Muqqddin 13 Court’s Guidance

14 {64} Since 2012, the Court of Appeals and this Court have both defined structures 15 that can be burglarized based on the redefined purpose of our burglary statutes from 16 Muqqddin. These Courts’ analyses make clear that the architectural inquiry helps a 17 court decide if this privacy interest is implicated, rather than imposing strict 18 structural requirements. 19 {65} In 2016, the Court of Appeals held that a private clerk’s area in a public hotel 20 lobby, secured by a locked back door, a chest-high counter, and a retractable barrier

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1 that could be pulled down to enclose the space, was a structure that could be 2 burglarized. State v. Mestas, 2016-NMCA-047, ¶¶ 2, 6, 27, 370 P.3d 805. The 3 Mestas Court interpreted Muqqddin as distinguishing between the conduct that 4 qualifies as burglary (“unauthorized entries”) and the structures that can be 5 burglarized: “[O]ur reading of the word ‘vehicle’ to include everything within the 6 exterior perimeter of the vehicle as a whole (including objects which could not be 7 occupied by humans, such as the gas tank) expanded the scope of the phrase 8 ‘unauthorized entry’ beyond its common law conception.” Id. ¶¶ 14, 16 (emphasis 9 added). In short, the Court made clear that whether a space can be burglarized is 10 inextricably linked to whether an entry would fit the common law understanding of 11 “unauthorized,” or implicate the privacy interest emphasized in Muqqddin. This 12 inextricable connection is mirrored in the Mestas Court’s analysis. The Court held 13 that an “unauthorized entry” had been committed and that the clerk’s area was a 14 structure based on the same inquiry: whether it was “reasonable to expect some 15 protection from unauthorized intrusions.” Id. ¶ 22 (quoting Muqqddin, 2012-NMSC- 16 029, ¶ 45, in holding that an “unauthorized entry” was committed) (internal 17 quotation marks omitted); see also id. ¶ 25 (quoting the same language in reasoning 18 that the clerk’s area was a structure).

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1 {66} In 2021, the Court of Appeals concluded that a house under construction was 2 a “dwelling” under the burglary statute. State v. Shelby, 2021-NMCA-064, ¶ 1, 499 3 P.3d 671. The Shelby Court explicitly stated that the architectural inquiry is not alone 4 dispositive: “The focus of our Supreme Court’s analysis in Muqqddin was on the 5 possessory and privacy interests the burglary statute seeks to protect, and the Court’s 6 discussion of both the physical characteristics of the structure and the use of a 7 structure entered shows these are interrelated considerations when identifying the 8 interest protected and the type of entry the Legislature seeks to deter.” Id. ¶ 10 9 (emphasis added). Because of the Muqqddin Court’s emphasis on the use of a 10 structure and the definition of a “‘dwelling house’” as “‘any structure, any part of 11 which is customarily used as living quarters,’” the Shelby Court undertook a lengthy 12 analysis of the use of the house under construction, concluding that it qualified as a 13 “dwelling.” Id. ¶¶ 9-10, 12-23 (quoting UJI 14-1631 NMRA). Contrary to the 14 majority’s assertion that Shelby “is . . . of limited value here . . . [because] the 15 defendant did not contest whether the home was a structure,” maj. op. ¶ 23, the 16 Shelby Court explicitly concluded the home was a structure, Shelby, 2021-NMCA-

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1 064, ¶ 12. I note that a “dwelling” is a type of “structure.” See UJI 14-1631; § 30- 2 16-3, -4. 10 3 {67} There have been no burglary cases before this Court since Muqqddin, but the 4 Court considered unauthorized entry under the breaking and entering statute in 2016. 5 State v. Holt, 2016-NMSC-011, 368 P.3d 409. The Holt Court reasoned that

10

The majority writes, “Shelby cited Mestas to support its view that, ‘under Muqqddin, we must examine the physical characteristics of an area to determine whether the space is private, enclosed, or sealed-off from public entry and protected by the burglary statute.’” Maj. op. ¶ 23 (quoting Shelby, 2021-NMCA-064, ¶ 8 (citation omitted)). The majority does not acknowledge that this phrase is disjunctive. “[T]he word ‘or’ should be given its normal disjunctive meaning unless the context . . . demands otherwise.” Hale v. Basin Motor Co., 1990-NMSC-068, ¶ 9, 110 N.M. 314, 795 P.2d 1006. Thus, as the portal here is both private and enclosed, it need not be sealed-off.

The majority also writes, “While the dissent highlights the interior furnishing of the space, the Shelby Court concluded that ‘the degree to which [the v]ictim moved his possessions into the house or the degree to which the interior of the house is finished are not necessarily the most significant considerations in this case because the house had a fully finished and secure exterior and it was actually used as living quarters.’” Maj. op. ¶ 23 (citing paragraph 72, infra) (quoting Shelby, 2021-NMCA-

064, ¶ 16). This selective quotation of Shelby is undermined by the text directly preceding the quotation: “We believe the state of the interior of the house in the current case, though relevant, is of even less significance because it was actually being used for habitation. Giving more weight to the actual use of a house as living quarters than to the state of completeness of the interior and conventional comforts of a home more closely aligns with the purpose of the residential burglary statute:, that is, to protect the security of the occupant and the possessory and privacy rights of habitation.” Shelby, 2021-NMCA-064, ¶ 16 (emphasis added). The majority’s selective focus on a “secure exterior” avoids dealing with the Shelby Court’s emphasis on both the victim’s actual use of the space and the privacy interest the Legislature intends to protect via the burglary statutes.

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1 breaking and entering is rooted in common law burglary and relied on burglary 2 jurisprudence in reaching its conclusion. Id. ¶ 15. 3 {68} The Court considered whether placing one’s fingers behind a window screen 4 constituted an unauthorized entry into a home. Id. ¶ 1. In doing so, the Court 5 acknowledged that the entry and structure inquiries are inextricably linked. See id. ¶ 6 16 (“Thus, an ‘entry,’ for purposes of the breaking-and-entering statute, occurs 7 whenever there is an invasion into an enclosed, private, prohibited space. But still 8 we must ask how do we define the boundaries of these spaces.” (citation omitted)); 9 contra maj. op. ¶ 21 (stating that Holt “is . . . of limited value here . . . [because] the 10 question at issue was whether there was an unauthorized entry, not whether the home 11 was a structure”). The Court then stated that Muqqddin “embraced the following 12 test: [T]he proper question is whether the nature of a structure’s composition is such 13 that a reasonable person would expect some protection from unauthorized 14 intrusions.” Holt, 2016-NMSC-011, ¶ 17 (emphasis added) (internal quotation 15 marks and citation omitted). The Court held it was reasonable for New Mexicans to 16 expect that window screens met this test. Id. ¶ 18. 17 {69} With this background in mind, I turn to the analysis. 18 II. ANALYSIS

19 A. The Portal Invokes the Privacy Interest the Legislature Intended to 20 Protect

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1 {70} The majority errs in vacating Defendant’s conviction based on the application 2 of an architectural tool without sufficient consideration of the central inquiry 3 emphasized in Muqqddin: whether a space invokes the privacy interest the 4 Legislature intended to protect. Victim had an expectation of privacy in his portal. 5 Further, correct application of the architectural tools our courts have used to aid in 6 defining prohibited space leads to the same result. The portal is a “dwelling” under 7 our burglary statutes. 8 {71} As clarified in Muqqddin, the key inquiry in defining prohibited space is 9 whether a space invokes the right to exclude and the privacy interest the Legislature 10 intended to protect. 2012-NMSC-029, ¶¶ 42, 43. Courts consider the use of a space 11 to draw this conclusion. Contra maj. op. ¶ 30 (cautioning against “defin[ing] a 12 statutorily prohibited space by a victim’s furnishings or subjective testimony”); see 13 Shelby, 2021-NMCA-064, ¶ 10 (“The focus of our Supreme Court’s analysis in 14 Muqqddin was on the possessory and privacy interests the burglary statute seeks to 15 protect, and the Court’s discussion of both the physical characteristics of the 16 structure and the use of a structure entered shows these are interrelated 17 considerations when identifying the interest protected and the type of entry the 18 Legislature seeks to deter.” (emphasis added)).

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1 {72} Analyzing the use of a space can be very fact-intensive. The Shelby Court 2 analyzed the use of a home under construction to conclude it qualified as a 3 “dwelling,” including discussion of the homeowner’s “unconventional” and 4 “temporary” furnishing of the space, his eating and sleeping habits, and his receipt 5 of deliveries at the home. 2021-NMCA-064, ¶¶ 12-23. The majority makes the 6 following example: “If we were to define a statutorily prohibited space by a victim’s 7 furnishings or subjective testimony with respect to the use of the space, as the district 8 court did here, victims who spend most of their time outside but who cannot afford 9 to purchase patio furniture may only receive the protection of trespass, whereas 10 victims who have the means to furnish their patio but may not spend any time on the 11 patio would receive the protection of the burglary statute.” Maj. op. ¶ 30. I 12 respectfully suggest that the majority’s example is self-contradictory: the “subjective 13 testimony” the majority mentions could make clear that a victim had an expectation 14 of privacy in a “dwelling” space, no matter how it was furnished. My (and the Court 15 of Appeals’) reading of the law recognizes and prioritizes this “subjective 16 testimony” as key to understanding when a victim has an expectation of privacy in 17 a personal space, necessitating protection under our burglary statutes. The majority’s 18 approach would deny protection to an unhoused person, living the most intimate

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1 parts of private life alongside their personal possessions in public, simply because 2 the person could not afford four walls and a roof. 3 {73} A court considering the use of a portal generally could find it is a “dwelling” 4 under our burglary statutes. An “adobe house in 1880 was essentially the same as it 5 had been in 1780 and 1680. . . . The simplest early New Mexican house was one 6 room deep[.] . . . An open porch, portal, provided communication between rooms.” 7 Agnesa Lufkin Reeve, From Hacienda to Bungalow 8 (1st ed. 1988); see also Eileen 8 Vanessa Rojas, Cultural Intersections and Historic Preservation: A Study of Las 9 Vegas, New Mexico 2 (1998), http://repository.upenn.edu/hp_theses/435, then 10 follow “Files” hyperlink, culturalintersec00roja.pdf (13.18 MB) (last visited July 8, 11 2025) (“Frequently, the exterior portal or an enclosed courtyard served as the sole 12 connection between interior spaces.”). Portals are still very common in New 13 Mexican residential architecture. They are a typical feature of building facades in 14 Santa Fe’s Downtown and Eastside Historic District and are proactively 15 “encouraged” in the Westside-Guadalupe Historic District. Code of Ordinances City 16 of Santa Fe, New Mexico, Article 14-5.2(E)(1)(a) (Downtown and Eastside Design 17 Standards), (I)(1)(i) (Westside-Guadalupe Design Standards) (2025). Of note, 18 existing portals in all Santa Fe Historic Districts “shall not be enclosed.” Article 14- 19 5.2(D)(4).

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1 {74} A court considering uses of Victim’s portal specifically could conclude 2 similarly. The portal at issue was furnished with seating, a table, a hutch, and a 3 chandelier, undoubtedly signs of a “dwelling” space. Victim’s wife testified the 4 portal “was kind of a living area for us.” The district court explained that “the 5 testimony is that this was an extension of the living space of the home.” 6 {75} The majority disagrees, stating that “intrusion into a portal . . . does not invoke 7 the same degree of violation or fear as that which occurs when a burglar invades the 8 interior of one’s home.” Maj. op. ¶ 27. I cannot agree with this characterization.

9 B. Applying the Architectural Tool That Aids Courts in Defining Prohibited 10 Space, as Articulated Both Before and After Muqqddin, the Portal Is a 11 Structure

12 {76} Our Courts developed the architectural inquiry as a tool to effectuate the 13 Legislature’s intent, not to alone define prohibited space. Contra maj. op. ¶ 30 14 (explaining that under Muqqddin, the proper inquiry “objectively examines whether 15 the structure is an enclosure capable of protecting from intrusion”); see, e.g., 16 Foulenfont, 1995-NMCA-028, ¶ 7 (“We must therefore examine Section 30-16-3 to 17 see if a fence is the type of ‘structure’ that creates a prohibited space.”). The majority 18 misinterprets this architectural tool as articulated in Foulenfont and misconstrues it 19 as a test that must be satisfied, without acknowledging that Muqqddin replaced that 20 architectural inquiry with one that better serves burglary’s purpose. However,

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1 applying the tool as explained in both cases, the portal here is a structure. 2 Importantly, State v. Gonzales, is still good law and supports that the portal here can 3 be burglarized. 2008-NMCA-146, 145 N.M. 110, 194 P.3d 725.

4 1. The portal has two walls and a roof so is “capable of completely confining 5 people and their property” under Foulenfont

6 {77} The portal comports with the architectural tool as articulated in Foulenfont. 7 The Foulenfont Court wrote:

8 We therefore interpret the phrase “other structure” in Section 30-16-3 9 to require an enclosure similar to a vehicle, watercraft, aircraft, or 10 dwelling. See State v. Gamble, 56 N.C.App. 55, 286 S.E.2d 804, 805 11 (1982) (definition of “building” which included the phrase “dwelling 12 . . . and any other structure designed to house or secure within it any 13 activity or property” historically required the structure to have one or 14 more walls and a roof). Our interpretation is supported by the fact that, 15 unlike a fence, all of the enumerated objects in the statute are capable 16 of completely confining people and their property.

17 1995-NMCA-028, ¶ 11. 18 {78} Thus, the fence before the Court was not an “other structure” because it did 19 not have “one or more walls and a roof,” so was not “capable of completely 20 confining people and their property.” This logically follows if one reads this 21 paragraph sentence by sentence. Reading the first sentence in tandem with the 22 parenthetical, the Foulenfont Court explains that an “other structure” that is “similar 23 to a vehicle, watercraft, aircraft, or dwelling,” in as much as it is designed to house 24 or secure within it any activity or property, must have “one or more walls and a

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1 roof.” Reading the second sentence, the Court explains that a fence is distinguishable 2 from the enumerated spaces because it is not “capable of completely confining 3 people and their property.” 4 {79} The majority, however, reads this paragraph to require a structure to be fully 5 “enclosed” or “sealed-off”, maj. op. ¶¶ 21-26, or in the present case, to require “a 6 gate, screen, door, or other feature that would aid in fully enclosing the space,” maj. 7 op. ¶¶ 28, 32. This reading is not supported by the text of Foulenfont. The portal 8 here has two walls and a roof. Thus, it is “capable of completely confining people 9 and their property.”

10 2. The portal has “some sort of enclosure” so “is such that a reasonable 11 person would expect some protection from unauthorized intrusions” 12 under Muqqddin

13 {80} In addition to misconstruing Foulenfont, the majority does not acknowledge 14 that its strict architectural analysis was replaced in Muqqddin by an inquiry which 15 better serves burglary’s purpose to protect the expectation of privacy. The Muqqddin 16 Court wrote:

17 Moreover, we agree with Foulenfont that in order for an area to 18 be considered prohibited space under Section 30-16-3, it must have 19 some sort of enclosure. Each of the enumerated structures in Section 20 30-16-3 either inherently has, or has been interpreted to require, some 21 sort of enclosure. Accordingly, we believe it is this enclosed space that 22 the Legislature intended to protect.

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1 Prohibited space is private space. It is the nature of the enclosure 2 that creates the expectation of privacy. Enclosure puts the public on 3 notice. As the California Court of Appeals stated, “[T]he proper 4 question is whether the nature of a structure’s composition is such that 5 a reasonable person would expect some protection from unauthorized 6 intrusions.”

7 2012-NMSC-029, ¶¶ 44-45 (emphasis added) (citation omitted). 8 {81} Thus, these paragraphs replace the idea that a structure must have “one or 9 more walls and a roof,” see Foulenfont, 1995-NMCA-028, ¶ 11, with an inquiry of 10 whether a structure has “some sort of enclosure” that by nature of its composition 11 causes “a reasonable person [to] expect some protection from unauthorized 12 intrusions,” Muqqddin, 2012-NMSC-029, ¶¶ 44-45 (internal quotation marks and 13 citation omitted). This is borne out in the caselaw: post-2012 Courts have largely 14 abandoned Foulenfont’s strict architectural analysis, instead relying on the inquiry 15 established in Muqqddin. See maj. op. ¶ 15 (Muqqddin “provided a roadmap of 16 principles to consider when examining whether a particular space is prohibited under 17 New Mexico’s burglary statute.”); Muqqddin, 2012-NMSC-029, ¶ 44 (citing 18 Foulenfont as having called for “some sort of enclosure”); Shelby, 2021-NMCA- 19 064, ¶ 8 (citing “an enclosure” requirement, Muqqddin, 2012-NMSC-029, ¶¶ 42-44, 20 without any citation to Foulenfont); Holt, 2016-NMSC-011, ¶ 17 (characterizing 21 Muqqddin’s reinterpretation of Foulenfont articulated above as having “embraced 22 [a] . . . test”); Mestas, 2016-NMCA-047, ¶ 24 (relying on “‘completely confining

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1 people and their property’” (quoting Foulenfont, 1995-NMCA-028, ¶ 11) only 2 once). 3 {82} It is beyond question that a reasonable person would expect some protection 4 from unauthorized intrusions in the portal at issue, which is open on two sides, 5 attached to the back of a home, and surrounded by a yard enclosed by a wooden 6 fence. Here, Victim’s wife opened the door to the portal and saw Victim struggling 7 with Defendant and soon after found Victim’s body “slumped over a small retaining 8 wall just beyond the portal.” See maj. op. ¶ 5. The majority, however, disagrees, 9 citing Holt, Mestas, and Shelby, which reasoned respectively that (1) a window 10 screen, (2) a clerk’s area in a hotel lobby secured by a locked back door, a chest- 11 high counter, and a retractable barrier, and (3) an enclosed house met this standard. 12 See maj. op. ¶¶ 21-25, 28. Importantly, neither the window screen, the retractable 13 barrier, nor the enclosed house was necessary to meet the architectural inquiry 14 articulated in Foulenfont, let alone under Muqqddin. See Shelby, 2012-NMCA-064, 15 ¶ 12 (“Although not necessarily required of a ‘dwelling house,’ these characteristics 16 supply ample evidence of an enclosure and the exercise of possessory and privacy 17 rights that would put the public on notice of a private space.”). Here, the portal’s two 18 walls and a roof are sufficient under our caselaw.

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1 3. Muqqddin did not overrule Gonzales, which is architecturally analogous 2 to the portal here

3 {83} Gonzales is sufficiently analogous to the case before us to support that the 4 portal here is a structure. 2008-NMCA-146. The Gonzales Court held that a covered 5 storage area open on three sides, attached to the side of a hardware store, accessible 6 from a door that connected the two spaces, and surrounded by a yard enclosed by a 7 chain link fence topped with barbed wire was a structure under the statute. Id. ¶ 8. 8 Here, the portal is a covered area open on two sides, attached to the back of a home 9 and accessible from two doors that connect the portal to the home, and surrounded 10 by a yard enclosed by a wooden fence. 11 {84} However, the majority concludes “that—even though the Muqqddin Court did 12 not explicitly overrule Gonzales—it has little, if any, remaining precedential value” 13 because (1) Gonzales relied on burglary jurisprudence from another jurisdiction that 14 has a statute that differs from ours and (2) Gonzales relied on Rodriguez, which

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1 Muqqddin clarified is no longer good law. See maj. op. ¶¶ 18-19. 11 I disagree, but 2 also question why we would overrule Gonzales if the Muqqddin Court declined to 3 do so. 4 {85} First, Muqqddin did caution courts against relying on out-of-jurisdiction 5 burglary jurisprudence based on a statute different than New Mexico’s but did not 6 do so in a way that undermined the Gonzales Court’s holding. Here is the entirety of 7 the portion of Muqqddin citing Gonzales:

8 This is not to say that burglary jurisprudence and statutes from 9 other jurisdictions are never relevant or helpful when interpreting our 10 own. However, when relying on such authority we must ensure that 11 another court is not relying on language that is absent from our statute 12 or that the language of the statute differs so greatly from ours that it 13 serves a different purpose. But see Gonzales, 2008-NMCA-146, 145 14 N.M. 110, 194 P.3d 725 (relying on Garrett v. State, 259 Ga. App. 870, 15 578 S.E.2d 460 (2002), to conclude that an open-air porch attached to 16 a commercial structure can be burglarized in New Mexico, while the 17 Garrett court relied specifically on language in the Georgia statute

The majority also states that “[u]ltimately, the Muqqddin Court identified

11

Gonzales as one of the cases in which the Court of Appeals significantly expanded the reach of the burglary statute without legislative authorization, which, in turn, supported this Court’s conclusion that our precedent had ‘gone astray’ such that a course correction was necessary. Id. ¶¶ 1, 22.” Maj. op. ¶ 19. This assertion rests on the assumption that the Court of Appeals opinions referenced generally in paragraph 1 of Muqqddin as those that have “gone astray” are identical to those cited in paragraph 22 as expanding the structures that could be burglarized, although paragraph 22 does not mention “legislative authorization.” Further, this assertion is at odds with the majority opinion, which plainly admits that Gonzales was not explicitly disavowed in Muqqddin. Maj. op. ¶ 19.

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1 indicating that a structure or a part of a structure can be burglarized, an 2 addition that is absent from New Mexico’s statute).

3 2012-NMSC-029, ¶ 28 (footnote omitted). The Muqqddin Court identified Gonzales 4 as an example of an instance in which the Court strayed analytically but still reached 5 a sound result. See The Bluebook: A Uniform System of Citation R. 1.2(c), at 63 6 (Columbia L. Rev. Ass’n et al. eds., 21st ed. 2020) (A but see signal “indicate[s] . . . 7 [c]ited authority clearly supports a proposition contrary to the main proposition. But 8 see is used where see would be used for support.” (internal quotation marks 9 omitted)). 10 {86} Second, while Muqqddin, 2012-NMSC-029, ¶¶ 38, 40, held that Rodriguez is 11 no longer good law, that does not invalidate Gonzales’s holding. Gonzales cites 12 Rodriguez as follows:

13 Accordingly, as the court did in Garrett, we conclude that the covered 14 area is an example of the kind of “prohibited space” within a “structure” 15 that the [L]egislature intended to protect when it enacted our burglary 16 statute. See Foulenfont, [1995-NMCA-028, ¶ 7] (explaining that “the 17 type of harm or evil the legislature intended to prevent” when it enacted 18 our burglary statute was to prevent the intrusion of one into the 19 “prohibited space” of another); cf. [Rodriguez, 1984-NMCA-034, ¶ 7] 20 (holding that the bed of a pickup truck, because it was part of the 21 vehicle, fell within the protection provided by our burglary statute).

22 2008-NMCA-146, ¶ 8. Thus, the Gonzales Court cited Rodriguez to support the idea 23 that a “part” of a structure can be burglarized, not for its use of the imaginary plane 24 theory, as the majority suggests. Maj. op. ¶ 19. The Muqqddin Court rejected

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1 Rodriguez under the rationale that our burglary statutes do not explicitly include 2 “parts” of enumerated structures. Muqqddin, 2012-NMSC-029, ¶¶ 37-38. However, 3 there is no need to see the covered storage area in Gonzales as a “part” of a 4 structure⸺it is itself a structure. And even if one did, the Court of Appeals has since 5 made clear that the inverse is not true: Muqqddin does not exclude any space that 6 could be construed as a “part” of a structure from qualifying as such under our 7 burglary statutes. Mestas, 2016-NMCA-047, ¶ 24. This may explain why Muqqddin 8 did not overrule Gonzales, but instead used it as an example of inappropriate reliance 9 on an out-of-jurisdiction statute which differed from New Mexico’s statute.

10 4. Holding the portal to be a structure, even though it is by its nature “open 11 to the elements,” does not necessitate adoption of the “imaginary plane” 12 theory rejected by Muqqddin

13 {87} Holding the portal a structure does not necessitate adopting the imaginary 14 plane theory. Contra maj. op. ¶ 26 (“Defendant necessarily is being punished for 15 crossing an [imaginary] plane.”). The Muqqddin Court rejected the theory as 16 allowing waving a hand over a flat-bed truck or stealing a shutter from the exterior 17 of a home to constitute burglary, but stated that the theory did not apply to “a 18 window, [which] by its nature, creates an opening in an enclosure.” Id. ¶¶ 47-48. As 19 these examples make clear, the Court rejected the theory because of a concern that 20 it incorporated spaces external to a structure, not because it imposed an imaginary

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1 plane on openings in a structure without a barrier. See Mestas, 2016-NMCA-047, ¶ 2 16 (interpreting Muqqddin to have criticized the Court of Appeals’ “reading of the 3 word ‘vehicle’ to include everything within the exterior perimeter of the vehicle as 4 a whole” as “expand[ing] the scope of the phrase ‘unauthorized entry’ beyond its 5 common law conception” (emphasis added)). 6 {88} Entering the open side of a portal does not require breaking some sort of 7 imaginary plane akin to stealing of a shutter on the exterior of a home. Instead, it is 8 more like entering a window, which by its nature creates an opening in the portal’s 9 enclosure. The Mestas Court did not apply the imaginary plane theory to the facts 10 before it, instead analogizing the open area above the counter of a clerk’s area in a 11 hotel lobby to an open window. See 2016-NMCA-047, ¶ 28; see also id. ¶ 26 12 (explaining that the Court in State v. Holt, 2015-NMCA-073, 352 P.3d 702, reasoned 13 that the imaginary plane theory did not apply in holding “that the space between a 14 window screen and a closed window on a home was a protected space under 15 Muqqddin”); Holt, 2016-NMSC-011, ¶ 18 (holding that an entry occurred without 16 mention of the imaginary plane theory). The same logic applies here. 17 {89} Thus, to determine whether Defendant entered the portal, we need not rely on 18 the concept of an imaginary plane, but on the judgment of the jury. While it seems 19 that the district court struggled to describe the boundary of the portal, the jury found

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1 that Defendant entered it. Further, Defendant abandoned appeal of this factual issue, 2 instead focusing on the purely legal question of whether a portal is a structure. 3 {90} In conclusion, the majority’s overreliance on an architectural tool reverses the 4 Muqqddin Court’s work to bring burglary back to its purpose of “protect[ing] against 5 the feeling of violation and vulnerability that occurs when a burglar invades one’s 6 personal space.” 2012-NMSC-029, ¶ 43. I am unable to concur that Victim’s portal 7 in this case is not a structure, specifically a “dwelling,” under our burglary statutes. 8 Thus, I respectfully dissent.

9 10 THOMSON, Chief Justice