July 05, 2011 – State of New Mexico v. Randy Sorrelhorse, No. 29,894

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: __________
Filing Date: 	July 5, 2011
NO. 29,894
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
RANDY SORRELHORSE,
Defendant-Appellant.
APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
John A. Dean, Jr., District Judge
Gary K. King, Attorney General
Margaret E. McLean, Assistant Attorney General
Joel Jacobsen, Assistant Attorney General
Santa Fe, NM
for Appellee
McGarry Law Office
Kathleen McGarry
Glorieta, NM
for Appellant

OPINION
WECHSLER, Judge.
{1} 	Our opinion filed March 22, 2011, is hereby withdrawn, and this opinion is
filed in its stead. We deny the State’s motion for rehearing.
{2} 	Defendant Randy Sorrelhorse appeals his convictions for breaking and entering
and criminal damage to property. 	Defendant argues that (1) the evidence was
insufficient to support his conviction for breaking and entering, and (2) his conviction
for criminal damage to property violates his right to be free from double jeopardy.
For the reasons that follow, we affirm Defendant’s conviction for breaking and
entering, and we vacate his conviction for criminal damage to property.
BACKGROUND
{3} 	At trial, Jimmy Arellano testified that he and his friend Christine Southworth
were at his apartment when Defendant knocked on the door and asked for cigarettes.
Arrellano told Defendant to leave and closed the door. Defendant returned several
minutes later, and when Arrellano opened the door, Defendant told Arrellano that he
would cut him with a knife. Arrellano then tried to close the door, and Defendant
began kicking and banging on it, while Arrellano and Southworth both tried to hold
the door closed.
{4} 	Arrellano testified that during this struggle, Defendant was able to get into his

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apartment a little way. He testified that Defendant was able to push him back into the
apartment about a foot. Southworth testified that, while Arrellano was trying to keep
Defendant out, she called 911, and Defendant began to walk away. The 911 operator
asked which direction Defendant was headed, and when Arrellano opened the door
to see, Defendant returned and began kicking the door again. 	Southworth also
testified that during Defendant’s struggle with Arrellano over the door, Defendant was
able to get his foot into the apartment and that he was stepping into the apartment.
Based on these events, Defendant was convicted of breaking and entering, contrary
to NMSA 1978, Section 30-14-8(A) (1981), and criminal damage to property,
contrary to NMSA 1978, Section 30-15-1 (1963). Defendant timely appeals.
SUFFICIENCY OF THE EVIDENCE
{5} 	Defendant first argues that his conviction for breaking and entering was not
supported by sufficient evidence. “In reviewing the sufficiency of the evidence, we
must view the evidence in the light most favorable to the guilty verdict, indulging all
reasonable inferences and resolving all conflicts in the evidence in favor of the
verdict.” State v. Cunningham, 2000-NMSC-009, ¶ 26, 128 N.M. 711, 998 P.2d 176.
“The reviewing court does not weigh the evidence or substitute its judgment for that
of the fact finder as long as there is sufficient evidence to support the verdict.” State
v. Mora, 1997-NMSC-060, ¶ 27, 124 N.M. 346, 950 P.2d 789, abrogated on other

3
grounds as recognized by Kersey v. Hatch, 2010-NMSC-020, 148 N.M. 381, 237 P.3d
683.
{6} 	In order to convict Defendant of breaking and entering, the State was required
to present evidence beyond a reasonable doubt that (1) Defendant entered a dwelling
house without permission, and (2) entry was obtained by breaking a door. See UJI 14-
1410 NMRA; see also § 30-14-8(A). 	Defendant argues that the evidence was
insufficient to establish that he entered the apartment. Defendant argues that, since
Arrellano and Southworth testified that Arrellano was able to prevent Defendant from
coming into the apartment, the essential element of entry cannot be established.
{7} 	Our case law interpreting the term “entry” in the criminal code requires only the
slightest penetration of an interior space. See State v. Reynolds, 111 N.M. 263, 270,
804 P.2d 1082, 1089 (Ct. App. 1990) (noting that any penetration of the interior space,
however slight, is sufficient to constitute “entry” within the meaning of the burglary
statute); State v. Tixier, 89 N.M. 297, 298-99, 551 P.2d 987, 988-89 (Ct. App. 1976)
(holding that evidence that an unidentified instrument penetrated one-half inch inside
a building is enough to effectuate an entry under the burglary statute); see also State
v. Muqqddin, 2010-NMCA-069, ¶¶ 11-13, 148 N.M. 845, 242 P.3d 412 (holding that
the defendant’s act of penetrating the gas tank of a van with a nail constituted an entry
for purposes of the burglary statute).

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{8} 	In this case, there was evidence that Defendant’s foot entered the apartment.
Additionally, the jury could reasonably infer that Defendant entered the apartment
based on the testimony that he pushed the people who were inside the apartment back
further into the apartment. 	We also reject Defendant’s assertion that Arrellano’s
testimony that he was able to stop Defendant from coming into the apartment
necessarily means that no part of Defendant’s body ever penetrated the interior space
of the apartment. Defendant’s conviction for breaking and entering was supported by
sufficient evidence.
DOUBLE JEOPARDY
{9} 	We now address Defendant’s argument that he was improperly convicted for
both breaking and entering and criminal damage to property in violation of his right
to be free from double jeopardy. 	Defendant raises a “double-description” double
jeopardy claim. 	See State v. Dombos, 2008-NMCA-035, ¶ 10, 143 N.M. 668, 180
P.3d 675 (stating that double-description cases are those in which a single act results
in multiple charges under different criminal statutes). 	We review double jeopardy
claims de novo. See State v. Bernal, 2006-NMSC-050, ¶ 6, 140 N.M. 644, 146 P.3d
289.
{10} 	In addressing double-description claims, we employ the two-part test set forth
by our Supreme Court in Swafford v. State, 112 N.M. 3, 13-15, 810 P.2d 1223, 1233-

5
35 (1991). See State v. Vallejos, 2000-NMCA-075, ¶ 6, 129 N.M. 424, 9 P.3d 668.
“First, we examine whether the conduct was unitary, meaning whether the same
criminal conduct is the basis for both charges.” 	Bernal, 2006-NMSC-050, ¶ 9. In
determining whether conduct was unitary, we “consider whether the defendant’s acts
are separated by sufficient indicia of distinctness.” State v. Lopez, 2008-NMCA-111,
¶ 9, 144 N.M. 705, 191 P.3d 563 (internal quotation marks and citation omitted).
“[W]e consider such factors as whether the acts were close in time and space, their
similarity, the sequence in which they occurred, whether other events intervened, and
a 	defendant’s 	goals 	for 	and 	mental 	state 	during 	each 	act.” 	State 	v. 	Ford,
2007-NMCA-052, ¶ 12, 141 N.M. 512, 157 P.3d 77.
{11} 	Applying these factors to the facts of this case, we conclude that Defendant’s
conduct was unitary. There was little separation in time and no separation in space
between Defendant’s initial act of trying to force open the door and his returning
moments later to beat on the door again. Nor was there any significant change in the
nature or objective of Defendant’s conduct. The conduct underlying both convictions
was the same, and Defendant’s intent was to open the door to the apartment by
physical force. See State v. Demongey, 2008-NMCA-066, ¶ 15, 144 N.M. 333, 187
P.3d 679 (holding that firing three shots separated by minutes and distance traveled
was unitary conduct, where the shots were fired during one high-speed chase in an

6
attempt to escape from a pursuing officer); State v. Mares, 112 N.M. 193, 200, 812
P.2d 1341, 1348 (Ct. App. 1991) (holding that the defendant could be found guilty of
only one count of aggravated battery when he was charged with four counts involving
pulling hair, beating, choking, and slapping the victim at various different locations
“over one violent rampage with little time between offensive contacts”).
{12} 	The State argues that Defendant’s act of walking away from the apartment and
Arrellano’s sticking his head out of the apartment door constituted intervening events
that 	rendered 	Defendant’s 	conduct 	non-unitary. 	However, 	we 	disagree 	that
Defendant’s act of momentarily walking away from the apartment door before
returning to continue to bang on it is sufficient to render the conduct non-unitary. Cf.
State v. Cooper, 1997-NMSC-058, ¶ 61, 124 N.M. 277, 949 P.2d 660 (finding
non-unitary conduct when a struggle “was an intervening event between the initial
battery and the acts that caused the death”).
{13} 	“If the defendant’s conduct is unitary, we next determine whether the
Legislature intended to create separately punishable offenses for the same conduct.”
Demongey, 2008-NMCA-066, ¶ 18. Absent a clear expression of legislative intent,
we apply the test stated in Blockburger v. United States, 284 U.S. 299, 304 (1932).
See State v. Armendariz, 2006-NMSC-036, ¶ 21, 140 N.M. 182, 141 P.3d 526.
Neither party argues that there is any indication of legislative intent to impose multiple

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punishments, nor do we find any. 	We therefore apply the Blockburger test. {14}
“In applying the Blockburger test, this Court compares the elements of each
crime with the elements of the other to determine whether the Legislature intended
separate punishments under each statute.” State v. Lee, 2009-NMCA-075, ¶ 9, 146
N.M. 605, 213 P.3d 509, cert. denied, 2009-NMCERT-006, 146 N.M. 733, 215 P.3d
42. “[I]f we conclude that each statute requires proof of an element that the other does
not, then a presumption arises that our [L]egislature intended for the conduct to result
in separately punishable offenses.” 	State v. Caldwell, 2008-NMCA-049, ¶ 11, 143
N.M. 792, 182 P.3d 775. 	This presumption can be overcome by other indicia of
legislative intent. See id.
{15} 	Breaking and entering can be committed a number of ways. Section 30-14-8(A)
provides, in relevant part, that “[b]reaking and entering consists of the unauthorized
entry of any . . . dwelling . . . , where entry is obtained by fraud or deception, or by the
breaking or dismantling of any part of the . . . dwelling . . ., or by the breaking or
dismantling of any device used to secure the . . . dwelling[.]” Through Section 30-14-
8(A), the Legislature has provided alternative methods of committing the crime of
breaking and entering a dwelling: by unlawfully entering a dwelling by fraud and
deception or by unlawfully entering a dwelling by breaking or dismantling any part
of the dwelling or any device that secures the dwelling.

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{16} 	When conducting a Blockburger analysis of a crime that may be charged in
alternative ways, we look to the “legal theory” of the crime charged. State v. Franco,
2005-NMSC-013, ¶ 14, 137 N.M. 447, 112 P.3d 1104. We do so by focusing on “the
elements of the statute as charged to the jury” and disregarding “the inapplicable
statutory elements.” Lee, 2009-NMCA-075, ¶ 11 (alteration, internal quotation marks
and citation omitted). When it is clear upon which statutory alternative the defendant
was convicted, we apply the Blockburger test by comparing the elements of the crime
as charged with the elements of the other crime at issue. See Franco, 2005-NMSC-
013, ¶ 15 (observing that a strict application of the Blockburger test may not be used
if there are “multiple alternatives of a compound statute and it is unclear which
alternative the jury relied on”). In comparing the elements under the Blockburger test,
we do not examine the facts in detail. Franco, 2005-NMSC-013, ¶ 14.
{17} 	The jury was instructed that to convict Defendant of breaking and entering, it
had to find beyond a reasonable doubt that (1) Defendant entered a dwelling house
without permission, and (2) entry was obtained by the breaking of a door. 	The
elements of criminal damage to property are “intentionally damaging any real or
personal property of another without the consent of the owner of the property.”
Section 30-15-1; see also UJI 14-1501 NMRA (requiring proof that the defendant
intentionally damaged the property of another and that the defendant did not have the

9
owner’s permission to damage the property).
{18} 	When we compare the two crimes, we conclude that breaking and entering
requires proof of an entry, which is not an element of criminal damage to property,
and criminal damage to property does not require proof of an element that is not
contained in breaking and entering. 	The State argues otherwise, contending that
criminal damage to property contains the essential element of intent to damage
property, which it contends is not an element of breaking and entering. 	The State
bases its argument on the common law meaning of the term “breaking,” which it
asserts this Court must conclude the Legislature intended when it used the term in
Section 30-14-8(A). To be sure, the common law is the backdrop for the Legislature’s
enactments, and courts therefore can rely on the common law to construe unclear or
ambiguous statutes. Sims v. Sims, 1996-NMSC-078, ¶ 24, 122 N.M. 618, 930 P.2d
153. The State asserts, and we agree, that courts should construe a statute based on
its common law meaning unless the Legislature intended otherwise. 	Id. ¶ 23. We
address the State’s argument as raising an issue of statutory construction concerning
legislative intent, which we consider de novo. 	Ortiz v. Overland Express, 2010-
NMSC-021, ¶ 18, 148 N.M. 405, 237 P.3d 707. 	In our analysis, “we seek to give
effect to legislative intent by looking to the language used and considering the
statute’s history and background.” Id. ¶ 19 (alteration, internal quotation marks, and

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citation omitted).
{19} 	At common law, the focus of the crime of burglary was to protect the security
of the home and those living within it. 	Minturn T. Wright III, Note, Statutory
Burglary—The Magic of Four Walls and a Roof, 100 U. Pa. L. Rev. 411, 427 (1951).
Burglary consisted of breaking and entering a dwelling of another in the night time
with the intent to commit a felony. 	Id. at 411. 	Although the breaking element
required some aspect of force in order to distinguish it from the element of entering,
actions such as opening a closed window or crawling down a chimney were
considered breaking, and damage to property was not necessary. Id. at 412. As the
crime of common law burglary evolved, an actual breaking was not required for
common law burglary; a constructive breaking was sufficient. Id.; State v. Ortiz, 92
N.M. 166, 168, 584 P.2d 1306, 1308 (Ct. App. 1978). In construing the New Mexico
burglary statute, this Court held that entry by fraud, deceit, or pretense was sufficient
to constitute the “unauthorized entry” requirement, which had been adopted by the
New Mexico Legislature instead of the common law requirement of “breaking.” See
id. at 168, 584 P.2d at 1308 (observing that “New Mexico no longer defines burglary
in terms of a ‘breaking’”).
{20} 	To adopt the State’s position, we must construe Section 30-14-8(A) to adopt the
meaning of the term “breaking” as used in common law burglary. As argued by the

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State, the term would then embrace the common law concepts of the “breaking of the
planes” or “breaking the close.” See United States v. Eichman, 756 F. Supp. 143, 148
(S.D.N.Y. 1991); People v. Frey, 467 N.E.2d 302, 304 (Ill. App. Ct. 1984). However,
this case does not involve a burglary statute, but rather involves the crime of breaking
and entering. Section 30-14-8(A) specifically prohibits “the breaking or dismantling
of any part” of a dwelling. It does not mention the concepts of common law burglary
that the State contends are controlling. 	Nor are we concerned with a constructive
breaking under the charges against Defendant. 	Rather, Section 30-14-8(A), by
addressing the “breaking” of “any part” or “any device used to secure,” contemplates
a physical breaking contrary to common law burglary. The Legislature departed from
the common law burglary concepts in enacting Section 30-14-8(A).
{21} 	Thus, looking at the elements of breaking and entering and criminal damage to
property, the offense of criminal damage to property does not require proof of a
separate element, and it was subsumed within breaking and entering. 	See Lee,
2009-NMCA-075, ¶ 14 (stating that when one offense is subsumed within another, the
inquiry is over and the statutes are the same for double jeopardy purposes). 	As a
result, Defendant’s right to be free from double jeopardy was violated by his
convictions for breaking and entering and criminal damage to property.
CONCLUSION

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{22} 	We affirm Defendant’s conviction for breaking and entering and vacate his
conviction for criminal damage to property. See Lee, 2009-NMCA-075, ¶ 16 (stating
that when double jeopardy exists, the offense carrying the lesser punishment is to be
vacated).
{23} 	IT IS SO ORDERED.
_______________________________
JAMES J. WECHSLER, Judge
WE CONCUR:
__________________________________
CELIA FOY CASTILLO, Chief Judge
__________________________________
LINDA M. VANZI, Judge