October 27, 2014 – State of New Mexico v. Joseph Archuleta, No. 32,794

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IN THE COURT OF APPEALS STATE OF NEW MEXICO

Opinion Number:

Filing Date: October 27, 2014

NO. 32,794

STATE OF NEW MEXICO,
Plaintiff-A ppellant,

V.

JOSEPH ARCHULETA,
Defendant-A ppellee.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Ross C. Sanchez, District Judge

Gary K. King, Attomey General

Connna Laszlo-Henry, Assistant Attomey General
Santa Fe, NM

M. Anne Kelly, Assistant Attomey General

Albuquerque, NM

for Appellant

Law Offices of the Public Defender

Jorge A. Alvarado, Chief Public Defender

Kimberly Chavez Cook, Assistant Appellate Defender
Santa Fe, NM

for Appellee

OPINION
VIGIL, Judge.
{1} 	State v. Tower, 2002-NMCA-109, ¶ 9, 133 N.M. 32, 59 P.3d 1264, holds that
entry into a commercial business establishment contrary to a no trespass order
constitutes an “unauthorized entry” into the business under our commercial burglary
statute. The question presented in this case is whether Tower should be overruled in
light of our Supreme Court’s opinion in State v. Office of the Public Defender ex rel.
Muqqddin, 2012-NMSC-029, 285 P.3d 622. The district court concluded that Tower
is no longer viable in light of Muqqddin, and dismissed the indictment charging
Defendant with one count of commercial burglary in violation of NMSA 1978,
Section 30-16-3(B) (1971), and the State appeals. Agreeing with the district court, we
overrule Tower and affirm.
BACKGROUND
{2} 	Defendant was charged with one count of commercial burglary on the basis that
he entered a Walgreens store “without authorization or permission, with intent to
commit any felony or a theft therein[.]” Defendant filed a motion to dismiss pursuant
to Rule 5-601 NMRA and State v. Foulenfont, 1995-NMCA-028, 119 N.M. 788, 895
P.2d 1329, requesting that the district court determine “[w]hether, as a matter of law,
entry into a commercial establishment during business hours with intent to commit a

1By conceding to the material facts for the purpose of determining whether they
are sufficient to support a burglary charge [RP 42-43], Defendant properly raised a
legal issue that the district court could resolve without a trial because the State did not
demonstrate that the facts are in dispute. 	See Foulenfont, 1995-NMCA-028, ¶ 6
(holding that the district court has authority to resolve purely legal questions under
Rule 5-601 where the facts are not disputed).
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theft within the business, when such entry was made after a no trespass order had been
served, constitutes the offense of [b]urglary[.]”
{3} 	For purposes of the motion, Defendant conceded that he entered a Walgreens
store through a public entrance during business hours and without ever leaving any
areas openly accessible to the public, concealed a bottle of Bacardi Rum worth twelve
dollars and eighty-three cents ($12.83) in his jacket and walked past all final points
of sale without paying for the bottle. 	Defendant further conceded that he had
previously been issued a warning that he was denied permission to enter or remain on
property belonging to Walgreens and that he intended to commit a theft from the
Walgreens when he entered it. Defendant argued that charging him with the felony
of burglary, rather than with misdemeanor criminal trespass and shoplifting or petty
larceny, resulted in the overly expansive application of the burglary statute cautioned
against by our Supreme Court in Muqqddin.
{4} 	The State opposed the motion on the grounds that the issue was improperly
raised as a Foulenfont motion,1that Tower is directly on point, and that Muqqddin is

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distinguishable. The district court determined that, while Tower is directly on point,
Muqqddin directed trial courts to consider what the Legislature intended when
applying the burglary statute. And, having considered the Legislature’s intent, the
district court determined that the Legislature did not intend for the burglary statute to
be used to prosecute what are “better revealed in the lesser statutes of [t]respass . . .
and [s]hoplifting[.]” The district court therefore dismissed the charge with prejudice.
In reaching its determination, the district court relied on the following undisputed
facts:
1. 	Defendant entered into a Walgreens store, which is a commercial
business establishment during business hours with intent to
commit theft within the business.
2. 	Defendant committed a theft with[in] the business.
3. 	The entry was made after a no trespass order had been issued and
served on Defendant, and Defendant’s permission to be inside the
store had been explicitly revoked.
DISCUSSION
{5} 	On appeal, we must decide whether to overrule a prior opinion of this Court.
The decision to overrule prior precedent is not one that is undertaken lightly. We
remain “mindful of the principles of stare decisis and take care to overrule established

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precedent only when the circumstances require it.” State v. Pieri, 2009-NMSC-019,
¶ 21, 146 N.M. 155, 207 P.3d 1132. 	Thus, before overruling a prior opinion, we
consider:
1) whether the precedent is so unworkable as to be intolerable; 2)
whether parties justifiably relied on the precedent so that reversing it
would create an undue hardship; 3) whether the principles of law have
developed to such an extent as to leave the old rule no more than a
remnant of abandoned doctrine; and 4) whether the facts have changed
in the interval from the old rule to reconsideration so as to have robbed
the old rule of justification.
State v. Swick, 2012-NMSC-018, ¶ 17, 279 P.3d 747 (quoting State v. Riley, 2010-
NMSC-005, ¶ 34, 147 N.M. 557, 226 P.3d 656, overruled on other grounds by State
v. Montoya, 2013-NMSC-020, ¶ 2, 306 P.3d 426). “When one of the aforementioned
circumstances convincingly demonstrates that a past decision is wrong,” we should
not hesitate to overrule even recent precedent. 	Pieri, 2009-NMSC-019, ¶ 21
(alteration, internal quotation marks, and citation omitted). With these principles in
mind, we now turn to a consideration of Muqqddin and Tower.
Muqqddin
{6} 	In Muqqddin, our New Mexico Supreme Court called into question forty years
of this Court’s burglary decisions. Our Supreme Court noted that, during that time,
this Court “issued numerous opinions that, for the most part, . . . expanded

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significantly the reach of the burglary statute,” and noted that this expansion
“occurred without any parallel change in the statute.” 	2012-NMSC-029, ¶ 1.
According to our Supreme Court,
[a]s the crime of burglary has continued to expand, it seems at times to
have transformed into an enhancement for any crime committed in any
type of structure or vehicle, as opposed to a punishment for a harmful
entry. In the past, the typical burglary scenario involved a home
invasion, and the crime was intended to protect occupants against the
terror and violence that can occur as a result of such an entry. Yet today
it has become more common to add a burglary charge to other crimes
where the entry itself did not create or add any potential of greater harm
than the completed crime. Our Legislature has never expressed an intent
that burglary be used as an enhancement, nor has it clearly authorized the
steady progression of judicial expansion of burglary as seen over the past
40 years.
Id. ¶ 3 (citation omitted).
{7} 	Our Supreme Court instructed that “the original common-law purpose of
burglary, the protection of the security of habitation or a similar space, is still relevant
when construing our modern burglary statute.” 	Id. ¶ 39. 	The Supreme Court
reminded both bench and bar that “burglary has a greater purpose than merely
protecting property[,]” id. ¶ 39, and that “[i]t is the invasion of privacy and the
victim’s feeling of being personally violated that is the harm caused by the modern
burglar, and the evil that our society is attempting to deter through modern burglary

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statutes.” Id. ¶ 42. While our Supreme Court recognized that “[t]he privacy interest
that our modern burglary statute protects is . . . broader than[] the security of
habitation,” it also noted that the burglary statute is still aimed at “protect[ing] against
the feeling of violation and vulnerability that occurs when a burglar invades one’s
personal space.” Id. ¶ 43.
{8} 	Finally, the Supreme Court provided guidance to lower courts, reminding us
that “[f]irst and foremost, what is being punished as a felony under Section 30-16-3
is a harmful entry[,]” id. ¶ 60; that such entry refers to “places where things are stored
and personal items can be kept private[,]” id. ¶ 61; and that “burglary is a serious
offense with serious consequences[,]” id. ¶ 60. Keeping in mind our Supreme Court’s
effort at guiding future applications of our burglary statute, we now turn to Tower.
Tower
{9} 	In 2002, this Court issued its decision in Tower. After being caught shoplifting
at a Foley’s department store, the defendant was given a trespass notice by Foley’s,
informing him that he was no longer welcome in any Foley’s and, if he was ever
found on Foley’s property, he would be arrested for criminal trespass. 2002-NMCA-
109, ¶ 2. Two years later, after the defendant was seen in Foley’s shoplifting, he was
indicted on charges of burglary and larceny. Id. ¶ 3. The district court dismissed the
burglary charges on the ground that the defendant had inadequate notice “that his re-

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entry into Foley’s [would] result in any charge more severe than trespassing.” 	Id.
(internal quotation marks omitted). The state appealed the district court’s decision.
{10} 	On appeal, we addressed whether the burglary statute was unconstitutionally
vague as applied to the defendant’s conduct and, therefore, whether the defendant’s
conduct was clearly proscribed by the burglary statute. Id. ¶ 4 (stating that, “[b]ecause
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” (internal quotation
marks and citation omitted)). We held that the burglary statute clearly applied:
The crime of burglary “consists of the unauthorized entry of any
. . . structure, . . . with the intent to commit any felony or theft therein.”
Here, [the d]efendant 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
[the d]efendant’s conduct.
Id. ¶ 5 (omissions in original) (citation omitted).
{11} 	We reasoned that, although “the store was generally open to the public as a
place of commerce” and “the shopping public was given authority to enter the store[,]
. . . a private property owner can restrict the use of its property, either to certain

2NMSA 1978, Section 30-14-1(B) (1995) defines “criminal trespass” as
“knowingly entering or remaining upon the unposted lands of another knowing that
such consent to enter or remain is denied or withdrawn by the owner or occupant
thereof.”
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persons or to those purposes for which it was dedicated[,] so long as the restrictions
are not discriminatory.” Id. ¶ 7. Thus, because Foley’s gave the defendant a notice
that he could no longer enter the store, we concluded that Foley’s “revoked any
authority that [the defendant] might otherwise have had to enter the property as a
member of the public.” Id. We therefore reversed, concluding that because “the law
is clear that a burglary is an unauthorized entry into a structure with the intent to
commit a felony or theft therein[, and the d]efendant knew that he was not authorized
to enter Foley’s[,] . . . . his entry for the purpose of committing shoplifting (a theft)
was a burglary.” Id. ¶ 9.
{12} 	Absent from our analysis in Tower is any discussion regarding whether the
entry was “harmful”—the gravamen of Muqqddin. Instead, our analysis in Tower
focused exclusively on the plain language of the statute and the ability of a department
store to revoke its permission to enter. And, while it is clear that such revocation of
permission to enter may give rise to criminal trespass,2 it is less clear following our
Supreme Court’s decision in Muqqddin whether that revocation will support felony
charges for burglary.

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{13} 	A similar issue was recently presented to this Court in State v. Baca, 2014-
NMCA-087, 331 P.3d 971, cert. granted, 2014-NMCERT-008, ___ P.3d ___. Baca
involved a defendant charged with commercial burglary where the defendant, who
was not a member of Costco, shoplifted after gaining entry into Costco by using a
membership card that did not belong to him. Id. ¶ 5. We determined that entry by a
non-member during business hours, did not constitute an unauthorized entry under our
burglary statute. Id. ¶ 6. In reaching that conclusion, we reasoned that there was “no
particular security or privacy interest at stake inside Costco that justifies recognizing
a departure from the general rule that we presume retail stores to be open to the
public”; that “[the d]efendant’s entry into th[e] shopping area d[id] not implicate ‘the
feeling of violation and vulnerability’ we associate with the crime of burglary”; and
that “[the d]efendant’s entry into Costco during business hours, albeit deceptive,
granted him access to an otherwise open shopping area, as opposed to an area ‘where
things are stored and personal items can be kept private.’” Id. ¶ 9 (quoting Muqqddin,
2012-NMSC-029, ¶¶ 43, 61). While Baca, ultimately, “express[ed] no opinion as to
[Tower’s] continuing precedential value,” Baca questioned “the continuing validity
of general statements in Tower indicating that a retail store’s notice revoking a
person’s permission to be on the premises is sufficient by itself to make his or her

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presence unauthorized under our burglary statute.” Baca, 2014-NMCA-087, ¶ 11. We
possess similar concerns here.
{14} 	We have difficulty envisioning how a defendant’s entry into an open public
shopping area, even where the person entering the shopping area has received a notice
of no trespass, can constitute the kind of harmful entry prohibited by the burglary
statute. Tower did not address that question but merely relied on the plain language
of the burglary statute––an approach for which the State also advocates. However,
Muqqddin cautioned against relying solely on the plain language of the statute. 2012-
NMSC-029, ¶ 38 (“[C]ourts must exercise caution in applying the plain meaning rule.
Its beguiling simplicity may mask a host of reasons why a statute, apparently clear and
unambiguous on its face, may for one reason or another give rise to legitimate (i.e.,
nonfrivolous) differences of opinion concerning the statute’s meaning[.]” (internal
quotation marks and citation omitted)). Rather, Muqqddin instructs prosecutors and
courts alike to assess whether the conduct in question falls within the parameters of
the burglary statute “construed in light of the purpose for which it was enacted.” Id.
¶ 36 (internal quotation marks and citations omitted); see also id. ¶ 59 (“When
deciding whether or not a burglary charge is appropriate, courts and [d]istrict
[a]ttorneys must consider whether or not this is the type of entry the Legislature
intended Section 30-16-3 to deter.” 	(Emphasis added.)). And, according to our

3 The State argues that requiring the entry to be “harmful,” or one that would
cause someone “to suffer a feeling of violation and vulnerability,” adds an additional
element to the burglary statute and creates a fact-based determination that cannot be
resolved pretrial. [BIC 10] We disagree. 	Muqqddin did not add an element to the
Legislature’s statutory definition of burglary that the State is required to prove at trial.
Rather, the inquiry into whether an entry is the type that would result in a feeling of
violation and vulnerability is a determination that the Supreme Court has required as
part of a statutory interpretation analysis that is resolved as a matter of law.
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Supreme Court, “[f]irst and foremost” in making that determination, we must consider
whether the conduct in question is “a harmful entry.”3 Muqqddin, 2012-NMSC-029,
¶ 60. Under the circumstances presented in this case—entry into an otherwise open
public shopping area after receiving a notice of no trespass—we conclude as a matter
of law that a harmful entry did not occur. Accordingly, we overrule Tower.
{15} 	The State argues that “any departure from the doctrine of stare decisis demands
special justification[,]” that Tower remains a workable precedent, and that the State
relied on Tower in making its charging decision. As we have discussed, our Supreme
Court in Muqqddin issued a directive to reevaluate existing burglary jurisprudence to
ensure that it is consistent with what our Supreme Court identified as the legislative
intent behind our modern burglary statute. Pursuant to that directive, we have
reevaluated Tower and have concluded that it is incompatible with the principles
articulated in Muqqddin. No further justification for overruling Tower is necessary.
Thus, the State’s reliance on Tower in making the decision to charge Defendant with

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burglary is an insufficient basis for permitting Tower to stand in light of this Court’s
conclusion that Tower is inconsistent with the principles articulated in Muqqddin.
{16} 	Our decision to overrule Tower is further supported by looking to the remaining
considerations articulated in Muqqddin for determining when criminal conduct should
be charged under the burglary statute. 	Our Supreme Court cautioned us to “be
cognizant of the disparity in potential penalties that can stem from a burglary charge
due to its unique place in our jurisprudence.” 2012-NMSC-029, ¶ 62.
The lesson from cases such as those presented here, along the outer
fringes of what the Legislature may or may not consider as burglary, is
that trial courts and trial counsel must consider more than just the words
of a statute. Words are the beginning, not the end; they serve as portals
into the thoughts behind the words of a criminal statute. Where, as here,
those thoughts are revealed in another, lesser statute, that becomes a
fairly reliable indicator of legislative intent, both as to the specific crime
and, more importantly, the gravity of the offense.
Id. ¶ 54.
{17} 	“As a felony, burglary is a serious offense with serious consequences. . . . [It]
is no petty crime.” 	Id. ¶ 60. 	Commercial burglary is a fourth degree felony.
See § 30-16-3(B). 	Conversely, criminal trespass is a misdemeanor offense, see
§ 30-14-1(B), (E), and larceny and shoplifting under $250 are petty misdemeanors.
See NMSA 1978, § 30-16-1(B) (2006) (larceny); NMSA 1978, § 30-16-20(B)(1)
(2006) (shoplifting). By classifying the conduct at issue as a misdemeanor or petty
misdemeanor, the Legislature signaled its intent that these acts not be punished as

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severely as burglary. 	As our Supreme Court noted, the burglary statute “was not
designed solely to deter trespass and theft, as those are prohibited by other laws.”
Muqqddin, 2012-NMSC-029, ¶ 40. 	Thus, given this disparity, we agree with the
district court’s conclusion, that the Legislature did not intend for the burglary statute
to be used to prosecute conduct that, in this case, is “better revealed in the lesser
statutes of [t]respass . . . and [s]hoplifting[.]” 	Moreover, to the extent ambiguity
remains as to whether the Legislature intended for this type of conduct to be
prosecuted under the burglary statute, “[t]he rule of lenity requires that ambiguity in
criminal statutes [be] strictly construed against the [s]tate.” Id. ¶ 58 (second alteration
in original) (internal quotation marks and citation omitted). Thus, under the rule of
lenity, any ambiguity must be resolved against the application of the burglary statute
to the conduct at issue in this case.
{18} 	Finally, the State challenges the district court’s ruling, arguing that the district
court was bound by Tower and that “[i]t is not the prerogative of the lower courts to
overrule controlling precedent, despite the fact that subsequent cases may raise doubts
about their continued vitality.” While we acknowledge that lower courts are bound
by controlling precedent “in order to protect the fundamental interests of fairness,
certainty, uniformity, and judicial economy,” State ex rel. Martinez v. City of Las
Vegas, 2004-NMSC-009, ¶ 20, 135 N.M. 375, 89 P.3d 47, we decline to address the

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propriety of the district court’s decision not to apply Tower, as it does not provide a
basis for reversal. Ultimately, we have determined that Tower is inconsistent with the
principles articulated in Muqqddin and must be overruled, and the district court’s act
of refusing to apply Tower does not alter that decision.
{19} 	In sum, we conclude that violating an order of no trespass by entering an
otherwise open public shopping area with the intent to commit a theft does not
constitute the type of harmful entry required for a violation of the burglary statute in
the wake of Muqqddin. 	To the extent that Tower holds that the burglary statute
applies to such conduct, Tower is expressly overruled. We conclude that to hold
otherwise allows the State to use the burglary statute to enhance the misdemeanor act
of trespassing to a felony—an enhancement that Muqqddin does not permit.
CONCLUSION
{20} 	For the reasons articulated above, the order of the district court is affirmed.
{21} 	IT IS SO ORDERED.
______________________________
MICHAEL E. VIGIL, Judge

WE CONCUR:

LINDA M. VANZI, Judge

J. MILES HANISEE, Judge

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