September 5, 2019- State of New Mexico v. Andrew Christian Ford, No. A-1-CA-36450

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Court of Appeals of New Mexico
Filed 9/5/2019 9:03 AM

Compilation Commission. The Court will ensure that the electronic version of this opinion is updated accordingly in Odygse,

Corrections to this opinion not affecting the outcome, at the Court's discretion, can occur up to the time of oni

ae

IN THE CC” RT OF APPEALS OF TH™ STATE OF NEW 0... X19

Filing Date: September 5, 2019
NO. A-1-CA-36450

STATE OF NEW MEXICO,

Plaintiff-Appellee,

ANDREW CHRISTIAN FORD,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
Alisa A. Hart, District Judge

Hector H. Balderas, Attorney General
Santa Fe, NM

Walter Hart, Assistant Attorney General
Albuquerque, NM

for Appellee

Bennett J. Baur, Chief Public Defender

Santa Fe, NM

Steven J. Forsberg, Assistant Appellate Defender
Albuquerque, NM

for Appellant

Mark at

1 	OPINION
2 	MEDINA, Judge.
3 	{t} 	Defendant 	challenges 	the 	sufficiency 	of 	the 	evidence 	supporting 	his
4 	convictions for receiving or transferring a stolen vehicle, contrary to NMSA 1978,
5 	Section 30-l 6D-4 (2009), and possession of burglary tools, contrary to NMSA 1978,
6 	Section 	30-16-5 	(1963). 	We 	conclude 	the 	evidence 	is 	sufficient 	to 	support
7 	Defendant ' s conviction for receiving or transferring a stolen vehicle but it is not
8 	sufficient to support his conviction for possession of burglary tools. We therefore
9 	affirm in part and reverse in part.
10 BACKGROUND
11 	{2} 	The testimony at trial was as follows. On February 20, 2015 , Cirilo Holguin
12 purchased a dark silver, four-door 1998 Honda Civic. Four day s later on February
13 	24, 2015 , the Civic was stolen from a parking lot in Albuquerque , New Mexico.
14 	Holguin reported the auto theft to 	the Albuquerque Police Department (APD).
15 	Holguin had not yet had time to register the car but did ha ve a temporary thirty-day
16 permit from the dealer attached to the front windshield. Holguin provided APD with
17 a description of his vehicle but was unable to provide the vehicle identification
18 	number when he reported the theft.
19 	{3} 	On March 12, 2015 , Albuquerque Police Detective Aaron Jones, who was
20 	acting undercover at the time, witnessed Defendant driving a vehicle near Carlisle
2

1 and I-40 in Albuquerque that matched the description of Holguin 's stolen Civic.
2 Detective Jones and other officers followed the Civic until it stopped in a parking
3 lot. Detective Jones subsequently detained both Defendant and his passenger.
4 	{4} 	Detective Jones testified that he saw a screwdriver located in the center
5 console of the vehicle and that the ignition had been "punched." Detective Jones
6 explained that a screwdriver could be used to start a vehicle with a punched ignition.
7 Officers did not find 	keys either in the ignition or at the scene. According to
8 Detective Jones, he did not tag the screwdriver into evidence because the tow truck
9 driver needed it to start and load the vehicle.
10 	{5} 	APD contacted Holguin by mail to inform him that his Civic had been
11 	recovered. Holguin drove to a tow lot off Jefferson Street in Albuquerque, where he
12 	identified the Civic as his vehicle. Holguin testified that the tires and rims had been
13 	replaced with poorer quality tires, the roof had been stained, the backseat was
14 damaged, and the body had been dented. In addition, the temporary dealer permit
15 	had been moved from the windshield to the back of the car. Holguin had to use a
16 	screwdriver to operate his car because his keys no longer made contact to start the
17 	vehicle.
18 	{6} 	This appeal followed.
3

1 DISCUSSION
2 	Standard of Review
3 	{7} 	"The test for sufficiency of the evidence is whether substantial evidence of
4 either a direct or circumstantial nature exists to support a verdict of guilty beyond a
5 reasonable doubt with respect to every element essential to a conviction." State v.
6 Montoya, 2015-NMSC-010, ,r 52, 345 P.3d 1056 (internal quotation marks and
7 citation omitted). We "v iew the evidence in the light most favorable to the guilty
8 verdict, 	indulging 	all 	reasonable 	inferences 	and 	resolving 	all 	conflicts 	in 	the
9 evidence in favor of the verdict." State v. Cunningham, 2000-NMSC-009, ,r 26, 128
10 N.M. 711 , 998 P.2d 176. We disregard all evidence and inferences that support a
11 	different result. See State v. Rojo, 1999-NMSC-001, ,r 19 , 126 N.M. 438, 971 P.2d
12 	829.
13 	{8} 	Despite our deferential approach, our responsibility is to "ensure that the
14 jury 's decisions are supportable by evidence in the record, rather than mere guess or
15 	conjecture." State v. Slade, 2014-NMCA-088, ,r 14 , 331 P.3d 930 (internal quotation
16 	marks and citation omitted). Our inquiry requires that we "distinguish between
17 conclusions 	based 	on 	speculation 	and 	those 	based 	on 	inferences[.]" 	Id. 	"A
18 	reasonable inference is a conclusion arrived at by a process of reasoning which is a
19 	rational and logical deduction from facts admitted or established by the evidence."
20 Id . (alterations, internal quotation marks, and citation omitted).
4

1 {9} 	When a challenge to the sufficiency of the evidence "requires us to engage in
2 statutory interpretation to determine whether the facts of [a] case, when viewed in
3 the light most favorable to the verdict, are legally sufficient to sustain a conviction,"
4 we apply a de novo standard of review. State v. Barragan , 2001-NMCA-086, ,r 24,
5 	131 N.M. 281 , 34 P.3d 1157, overruled on other grounds by State v. Tollardo , 2012-
6 NMSC-008 , ,r 37 n.6, 275 P.3d 110.
7 	Defendant's Conviction for Receiving or Transferring a Stolen Vehicle Is
8 Supported by Sufficient Evidence
9 	{tO} 	Pursuant to State v. Franklin , 1967-NMSC-151, 78 N.M. 127, 428 P.2d 982,
10 and State v. Boy er, 1985-NMCA-029, 103 N.M. 655, Defendant argues the evidence
11 	was insufficient to prove that the vehicle he was driving was the car stolen from
12 	Holguin. 	At trial, Detective Jones testified that the stolen vehicle he observed
13 	Defendant driving matched the description of the stolen Civ ic and that the same was
14 towed to Knittles Towing on Jefferson Street. Holguin testified he retrieved his Civic
15 	from the Knittles tow yard on Jefferson Street, upon receipt of a card from the police
16 	notifying him that his vehicle was located there. Holguin testified that even though
17 	the Civic was damaged, it looked like his vehicle and had the same temporary dealer
18 	tag. We conclude that the testimony of Detective Jones and Holguin could support
19 the jurors' determination that Defendant was in possession ofHolguin ' s stolen Civic.
5

1 The 	Evidence 	Was 	Insufficient 	to 	Support 	Defendant's 	Conviction 	for
2 Possession of Burglary Tools
3 	{11} 	Defendant argues the evidence is insufficient to support his conviction for
4 possession of burglary tools because there was ( 1) no evidence of a burglary, (2) no
5 evidence that he had access to the screwdriver before he entered the vehicle, and (3)
6 no evidence that he intended to use the screwdriver to make an unauthorized entry.
7 The State argues that, as defined in Section 30-16-5, a "burglary tool" includes but
8 is not limited to a tool used for breaking and entering and therefore the evidence
9 showing Defendant's use of the screwdriver to "possess the vehicle by driving it,"
10 	was evidence of his intent to use the screwdriver to commit a burglary. The State
11 	dismisses the issue of whether the screwdriver was inside the vehicle before or after
12 	entry as "w holly irrelevant."
13 	{12} 	The arguments on appeal require us to interpret and consider the relationship
14 between the burglary and possession of burglary tools statutes. "Our primary goal
15 	when 	interpreting 	statutory 	language 	is 	to 	give 	effect 	to 	the 	intent 	of 	the
16 	[L]egislature." State v. Torres, 2006-NMCA-106, it 8, 140 N.M. 230, 141 P.3d 1284.
17 "We do this by giving effect to the plain meaning of the words of [a] statute, unless
18 	this leads to an absurd or unreasonable result. " State v. Marshall, 2004-NMCA-l 04,
19 it 7, 136 N.M. 240, 96 P.3d 801.
20 	{13} 	Burglary is defined as "the unauthorized entry of any vehicle, watercraft,
21 	aircraft, dwelling or other structure, movable or immovable, with the intent to
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1 commit any felony or theft therein." NMSA 1978, § 30-16-3 (1971 ). Burglary is
2 "complete upon entry with the requisite intent." State v. Office of Pub. Def ex rel.
3 Muqqddin, 2012-NMSC-029, ,r 60, 285 P.3d 622. While intent to commit any theft
4 or felony is an element of burglary, entry is the primary concern protected by the
5 burglary statute. See id. ,r,r 41, 60. Burglary is a standalone crime and does not
6 require the requisite intended crime be completed after entry. See State v. Ramirez,
7 2008-NMCA-165, ,r 6, 145 N.M. 367, 198 P.3d 866.
8 {14} 	The possession of burglary tools statute states, "Possession of burglary tools
9 consists of having in the person's possession a device or instrumentality designed or
10 	commonly used for the commission of burglary and under circumstances evincing
11 	an intent to use the same in the commission of burglary." Section 30-16-5. The
12 	statute explicitly requires possession of tools "designed or commonly used for the
13 	commission of burglary and under circumstances evincing an intent to use the same
14 	in the commission of burglary." Id. (emphasis added). The Legislature's specific use
15 	of the term burglary indicates that the tools must be used, or intended to be used, in
16 the commission of a burglary. Because burglary is completed upon entry, it is at the
17 	moment of entry or prior to the entry that the use or intended use of burglary tools
18 	matters. It therefore follows that burglary tools must be used, or intended to be used,
19 to facilitate entry.
7

1 {15} 	Consistent with the statute and UJI 14-1633 NMRA, the jury was instructed
2 that in order to convict Defendant of possession of burglary tools, it had to find,
3 beyond a reasonable doubt, 	each 	of the following 	elements 	of the crime: 	( 1)
4 Defendant had in his possession a screwdriver which is designed or commonly used
5 in the commission of a burglary; (2) Defendant intended that such tool or device be
6 used for the purpose of committing a burglary; and (3) that this happened in New
7 Mexico on or about March 12 , 2015. The second element specifically required the
8 State prove that Defendant possessed the screwdriver with intent to use it in the
9 commission ofa burglary.' See State v. Smith, 1986-NMCA-089, ,r 7, 104 N.M. 729,
10 	726 P.2d 883 ("Jury instructions become the law of the case against which the
11 	sufficiency of the evidence is to be measured." ).
12 	{16} 	The 	State 	directs 	us 	to 	State 	v. 	Hernandez, 	m 	which 	we 	affirmed 	the
13 	defendant 's conviction for possession of burglary tools despite the fact that the tools
14 	were not used to gain access to the vehicle but instead as a means of starting the car.
15 	1993-NMCA-132, ,r 2, 116 N.M. 	562, 865 P.2d 	1206. Hernandez is factually
16 distinguishable. In that case, the defendant purchased a screwdriver at a nearby store,
17 	opened an unlocked door to a vehicle that did not belong to him, and tried to start
18 	the car by inserting the screwdriver into the ignition. Id . ,r 2. On appeal, the defendant
1 The State is correct that the December 31 , 2017, amendment to UJI 14-1633
was not applicable at the time of trial in this case.
8

1 argued 	that 	there 	was 	not 	sufficient 	evidence 	to 	support 	his 	convictions 	for
2 possession of burglary tools because "an intent to steal the car is not an intent to
3 commit a theft 'therein.' " Id. ,I 6. In other word s, according to the defendant, the
4 burglary statute required proof of intent to steal or otherwise do wrong within the
5 car, not proof of an intent to steal the car itself. Id.
6 {17} 	We rejected the defendant's argument, concluding that theft of a car can be
7 accomplished from within the vehicle, reasoning that the term "therein" in the
8 burglary statute indicated that the crime exists if the defendant formed an intent to
9 commit a crime "in that place" including an intent to commit car theft. Id. ,I 7
10 	(internal 	quotation 	marks 	and 	citation 	omitted). 	The 	fact 	that 	the 	door 	was
11 	unlocked- 	and the defendant did not have to use the screwdriver to gain entry- 	did
12 	not negate the evidence that the defendant purchased the screwdriver with intent to
13 	use it to commit the burglary. It was the defendan t' s intent to use the screwdriver-
14 prior to entry- 	that supported his conviction fo r possession of burglary tools. See
15 	State v. Je nnings, 1984-NMCA-051 , il 14 , 102 N.M. 89, 691 P.2d 882 (stating that
16 the intent to use, rather than actual use, will support conviction).
17 	{18} 	Unlike the facts in H e rnandez, where the defendant had a screwdriver in his
18 	possession before he entered the vehicle, there is no evidence here that Defendant
19 possessed 	the screwdriver before he entered 	Holguin 's 	Civic. 	Detective Jones
20 testified that he witnessed Defendant driving the Civic and that he later saw a
9

1 screwdriver in the center console. While this evidence is sufficient to prove that at
2 some point Defendant entered the Civic and may have possessed the screwdriver
3 after entry, it does not establish that he possessed the screwdriver while entering the
4 vehicle. Indeed, the State concedes that "no evidence was submitted that Defendant
5 used or intended to use the screwdriver to obtain unauthorized entry to the vehicle,
6 and that it would be speculation to so conclude from Defendant' s possession of the
7 screwdriver." Because there was no evidence that Defendant had the screwdriver
8 before he entered the vehicle or that he had any intent to use the screwdriver to make
9 the unauthorized entry into the vehicle, there is insufficient evidence to support
10 	Defendant's conviction for possession of burglary tools.
11 	CONCLUSION
12 	{19} 	Based on the forgoing, we affirm Defendant's conviction for receiving or
13 	transferring a stolen vehicle, and reverse his conviction for possession of burglary
14 tools.
15 	{20} 	IT IS SO ORDERED.
16
17 	UELINE R. MEDINA, Judge
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—

No

nA &

WE CONCUR:

BRIANA H. ZAMORA(Judge

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