State v. Tower

2002 NMCA 109, 59 P.3d 1264, 133 N.M. 32
CourtNew Mexico Court of Appeals
DecidedSeptember 11, 2002
Docket22,670
StatusPublished
Cited by21 cases

This text of 2002 NMCA 109 (State v. Tower) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Tower, 2002 NMCA 109, 59 P.3d 1264, 133 N.M. 32 (N.M. Ct. App. 2002).

Opinion

OPINION

BUSTAMANTE, Judge.

{1} The State appeals the trial court’s dismissal of a burglary charge filed against Defendant. We hold that the trial court erred in determining that Defendant had inadequate notice of the crime under the United States and New Mexico Constitutions. We reverse and remand for reinstatement of the charge.

BACKGROUND

{2} On March 11, 1998, Defendant was given a “Trespass Notice” by Foley’s department store. The notice stated that, due to incidents of shoplifting, Defendant was no longer welcome in any Foley’s. It stated that if Defendant was ever found on Foley’s property, he would be arrested for criminal trespass. The written notice was apparently acknowledged by Defendant. Further, it appears that Defendant was given oral notification to the same effect.

{3} Two years later, in June of 2000, Defendant was seen in Foley’s shoplifting clothing items valued between $100 and $250. Defendant was indicted on charges of burglary and larceny. He filed a motion to dismiss the burglary charge arguing the limited scope of the trespass notice. The trial court granted the motion, ruling that “the Defendant had inadequate notice under the U.S. and New Mexico Constitutions.” The trial court stated, “There is nothing in the notice served on Mr. Tower that alerts him to the fact that his re-entry into Foley’s will result in any charge more severe than trespassing.” The State’s motion for reconsideration was denied and it now appeals.

DISCUSSION

{4} The trial court’s dismissal of the burglary charge was based on a determination that Defendant did not have adequate notice that his conduct in entering Foley’s for the purpose of shoplifting would constitute burglary. The ruling seems to be based on a finding that the burglary statute is unconstitutionally vague as applied to Defendant’s conduct. “[T]he test of whether a statute is unconstitutionally vague so as to violate constitutional due process is whether the statute gives a person of ordinary intelligence a reasonable opportunity to know what conduct is prohibited.” State v. Luckie, 120 N.M. 274, 277, 901 P.2d 205, 208 (Ct.App.1995). When we review a statute for constitutionality, we presume that the statute is constitutional. Id. “A constitutional challenge grounded upon a claim of vagueness involves a mixed question of law and fact that is reviewed de novo.” State v. Duran, 1998-NMCA-153, ¶ 31, 126 N.M. 60, 966 P.2d 768. “Because the essence of a vagueness claim rests on a lack of notice, a party may not succeed on the claim if the statute clearly applies to the defendant’s conduct.” Id.

{5} The crime of burglary “consists of the unauthorized entry of any ... structure, ... with the intent to commit any felony or theft therein.” NMSA 1978, § 30-16-3 (1971). Here, Defendant entered the Foley’s department store after his permission to enter had been revoked. Thus, he was unauthorized to enter the store. Since he was caught stealing articles from the store, it can reasonably be inferred that he entered the store with the intent to steal items from it. It appears that the burglary statute clearly applies to Defendant’s conduct.

{6} The question, however, is whether the trespass notice given to Defendant was adequate to notify him that his entry was unauthorized such that he could be charged with anything other than criminal trespass. The notice specifically states that Defendant is no longer welcome in Foley’s. It further specifically states that any future presence on Foley’s property will be viewed as a trespass. Defendant argued, and the trial court appears to have agreed, that the language of the notice limited any criminal charges against Defendant, if he came onto Foley’s property, to criminal trespass. We do not believe that this is a reasonable reading of the notice. The notice simply told Defendant that he would be trespassing if he came on to Foley’s property ever again.

{7} Trespassing, both at common law and by statute, is the entry onto another’s property without permission of the owner. See North v. Pub. Serv. Co., 94 N.M. 246, 247, 608 P.2d 1128, 1129 (Ct.App.1980) (identifying common law trespass); NMSA 1978, § 30-14-1 (1995) (defining criminal trespass). Here, the store was generally open to the public as a place of commerce. Thus, the shopping public was given authority to enter the store. However, there is no question that a private property owner can restrict the use of its property, either to certain persons or to those purposes for which it was dedicated so long as the restrictions are not discriminatory. See Adderley v. Florida, 385 U.S. 39, 47, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966) (holding that a jail was not open to the public and that the State could properly limit access to portions of jail property). Foley’s gave notice to Defendant that he could no longer come into the store. Thus, it revoked any authority that he might otherwise have had to enter the property as a member of the public. We do not believe that the notice had any effect, other than to revoke Defendant’s permission to enter the store.

{8} We liken the notice given to Defendant to those notices that may be posted restricting access to certain areas in an otherwise public area. In cases where a person has entered an unauthorized area of an otherwise public area with the intent to steal, we have found that burglary occurred. State v. Romero, 119 N.M. 195, 197, 889 P.2d 230, 232 (Ct.App.1994) (finding that a burglary occurred when the defendant entered an office area not open to the public and stole a purse); State v. Sanchez, 105 N.M. 619, 619-20, 735 P.2d 536, 536-37 (Ct.App.1987) (finding that a burglary occurred when the defendant entered the loading dock area of an auto parts store with the intent to steal). Thus, where a defendant has notice that he is not authorized to enter a particular area and he, nevertheless, does so with the intent to commit a theft, he can be charged with burglary.

{9} Defendant’s claim that he did not know that he could be charged with burglary if he went to Foley’s to shoplift is unpersuasive. We have often stated that ignorance of the law is no excuse. State v. Montoya, 91 N.M. 262, 265, 572 P.2d 1270, 1273 (Ct.App.1977). Every person is presumed to know the law. It is the law that must give a reasonable person notification that his conduct is criminal, not the purported victim. Here, the law is clear that a burglary is an unauthorized entry into a structure with the intent to commit a felony or theft therein. Defendant knew that he was not authorized to enter Foley’s. Thus, his entry for the purpose of committing shoplifting (a theft) was a burglary.

{10} At least one other state has found burglary to be the correct charge where a defendant’s authorization to enter a store has been revoked and he re-enters with the intent to shoplift. State v. Kutch, 90 Wash.App. 244, 951 P.2d 1139 (1998).

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Cite This Page — Counsel Stack

Bluebook (online)
2002 NMCA 109, 59 P.3d 1264, 133 N.M. 32, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tower-nmctapp-2002.