July 13, 2020- State of New Mexico v. Michael Romine, No. A-1-CA-37431

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO,	2
Plaintiff-Appellee,	3
v. 	No. A-1-CA-37431	4
MICHAEL ROMINE,	5
Defendant-Appellant.	6
APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY	7
Cindy Leos, District Judge	8
Hector H. Balderas, Attorney General	9
Maha Khoury, Assistant Attorney General	10
Santa Fe, NM	11
for Appellee	12
Bennett J. Baur, Chief Public Defender	13
MJ Edge, Assistant Appellate Defender	14
Santa Fe, NM	15
for Appellant	16
MEMORANDUM OPINION	17
HENDERSON, Judge.	18
{1} 	Following a jury trial, Defendant Michael Romine was convicted of a single	19
count of commercial burglary. On appeal, Defendant challenges the sufficiency of	20
the evidence supporting his conviction. We affirm.	21
Court of Appeals of New Mexico
Filed 7/13/2020 9:00 AM

2
BACKGROUND	1
{2} 	Albuquerque Public Schools (APS) Officer Lorraine Lopez-Sadler was	2
dispatched to the APS Montgomery Complex (the Complex) shortly after midnight	3
in response to a silent alarm. The Complex had approximately twelve portable	4
buildings on the property. When a silent alarm was triggered at the Complex, Officer	5
Lopez-Sadler was unable to tell from which portable the alarm originated. Officer	6
Lopez-Sadler arrived at the Complex approximately twelve minutes after the alarm	7
was triggered. She checked the portable buildings and found one that was visibly	8
unsecured. She saw scratches near the inside latch of the door. Officer Lopez-Sadler	9
entered the portable and discovered it contained rows of shelves full of items in	10
storage. She found Defendant in a corner of the portable.	11
{3} 	Defendant was wearing a black wig and a face-covering with holes cut out for	12
visibility. He had a black bag over his shoulder and was holding a screwdriver.	13
Defendant told Officer Lopez-Sadler he was looking for a place to sleep and was	14
going to sell the bag to get money for that purpose. Another screwdriver was	15
discovered next to where Defendant was found, as were two flashlights. A headlamp	16
was also recovered from the scene. Officer Lopez-Sadler handcuffed Defendant as	17
she waited for backup officers to arrive. Defendant was transported to APS	18
Headquarters for questioning by APS Detective Robert Griego. An image projector	19

3
was found in the bag Defendant was carrying on his shoulder. Detective Griego	1
returned the projector to an APS employee.	2
{4} 	Defendant was indicted for one count each of the following: commercial	3
burglary, contrary to NMSA 1978, Section 30-16-3(B) (1971); possession of	4
burglary tools, contrary to NMSA 1978, Section 30-16-5 (1963); and larceny,	5
contrary to NMSA 1978, Section 30-16-1 (2006). After the presentation of the	6
State’s evidence, Defendant moved for a directed verdict on all three counts. The	7
district court granted Defendant’s motion in regard to the larceny charge because of	8
the State’s failure to establish ownership by another but allowed the remaining	9
counts to proceed to the jury. The jury acquitted Defendant of possession of burglary	10
tools and convicted him of commercial burglary. Defendant filed a motion to	11
reconsider the denial of his motion for directed verdict as to commercial burglary,	12
which the district court denied. This appeal followed.	13
DISCUSSION	14
I. 	Substantial Evidence Supports Defendant’s Conviction	15
{5} 	To sustain a conviction for commercial burglary, the State was required to	16
prove, in relevant part, that: (1) Defendant entered a structure without authorization;	17
and (2) Defendant entered the structure with the intent to commit a theft when	18

4
inside.1 See UJI 14-1630. Defendant argues that the State failed to present evidence	1
that his entry into the portable building was unauthorized. Defendant also argues that	2
the 	bulk 	of 	the 	evidence 	presented 	regarding 	his 	intent 	was 	impermissibly	3
speculative. We address each argument in turn.	4
A. 	Standard of Review	5
{6} 	“The test for sufficiency of the evidence is whether substantial evidence of	6
either a direct or circumstantial nature exists to support a verdict of guilty beyond a	7
reasonable doubt with respect to every element essential to a conviction.” State v.	8
Montoya, 2015-NMSC-010, ¶ 52, 345 P.3d 1056 (internal quotation marks and	9
citation omitted). “Substantial evidence is relevant evidence that a reasonable mind	10
might accept as adequate to support a conclusion.” State v. Rojo, 1999-NMSC-001,	11
¶ 19, 126 N.M. 438, 971 P.2d 829. “[W]e resolve all disputed facts in favor of the	12
[s]tate, indulge all reasonable inferences in support of the verdict, and disregard all	13
evidence and inferences to the contrary.” Id. “The question before us as a reviewing	14
Court is not whether we would have had a reasonable doubt but whether it would	15
have been impermissibly unreasonable for a jury to have concluded otherwise.” State	16
v. Rudolfo, 2008-NMSC-036, ¶ 29, 144 N.M. 305, 187 P.3d 170.	17
1 While the jury was instructed that it must find Defendant had the “intent to
commit any felony or a theft when inside[,]” UJI 14-1630 NMRA, the State only
advanced the theory that Defendant intended to commit a theft, and Defendant only
challenges the sufficiency of the evidence as to this theory. We limit our discussion
accordingly.

5
B. 	Unauthorized Entry	1
{7} 	Defendant argues the State presented insufficient evidence to demonstrate that	2
his entry into the storage portable was unauthorized. Specifically, Defendant asserts	3
that no testimony was offered regarding signage in the Complex warning against	4
trespass. Further, Defendant argues that because the triggered alarm was silent, he	5
was not alerted that his presence was unwelcome. Finally, Defendant argues that	6
evidence of scratch marks on the portable door was inconsistent with forced entry.	7
{8} 	Unauthorized entries are those with the potential to disturb the owner’s	8
privacy interests and rights to possess and exclude. State v. Mestas, 2016-NMCA-	9
047, ¶ 13, 370 P.3d 805. “[T]he right to exclude others is the possessory interest with	10
which burglary is primarily concerned.” State v. Office of the Pub. Def. ex rel.	11
Muqqddin, 2012-NMSC-029, ¶ 41, 285 P.3d 622. In determining if Defendant’s	12
conduct was an unauthorized entry, “we ask whether the entry described by the	13
evidence at trial is the type of entry the Legislature intended Section 30-16-3 to	14
deter.” Mestas, 2016-NMCA-047, ¶ 13 (internal quotation marks and citation	15
omitted). “[Unauthorized] entry is the primary concern protected by the burglary	16
statute.” State v. Ford, 2019-NMCA-073, ¶ 13, 453 P.3d 471.	17
{9} 	We are not persuaded that Defendant was without notice that his entry was	18
unauthorized. Notice that a space is off limits to the public is embodied in the very	19
enclosure of the space. See Muqqddin, 2012-NMSC-029, ¶ 45 (“Enclosure puts the	20

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public on notice.”). To ascertain if an enclosure gives proper notice that it is	1
prohibited space, we ask “whether the nature of a structure’s composition is such	2
that 	a 	reasonable 	person 	would 	expect 	some 	protection 	from 	unauthorized	3
intrusions.” Id. (internal quotation marks and citation omitted). A portable building	4
used for storage on APS property certainly fits this description.	5
{10} 	Likewise, Defendant’s argument that the evidence did not establish forced	6
entry is without merit, because “damage to property is not necessary to commit	7
burglary.” Id. ¶ 39; see State v. Ortiz, 1978-NMCA-074, ¶ 13, 92 N.M. 166, 584	8
P.2d 1306 (noting that “breaking” is not required to commit burglary). Nevertheless,	9
evidence of damage to the portable door could reasonably have guided the jury in	10
finding that Defendant’s entry was unauthorized. Officer Lopez-Sadler testified that	11
when she arrived at the portable where Defendant was found, the door was	12
unsecured. She stated that the lock appeared damaged and that there were scratches	13
near the inside latch of the door. While she noted that the scratches may have existed	14
prior to that evening, the jury was also provided with photos of the door to review.	15
It was the function of the jury to assess the significance of the photos alongside	16
Officer Lopez-Sadler’s testimony. See State v. McGhee, 1985-NMSC-047, ¶ 17, 103	17
N.M. 100, 703 P.2d 877 (“[T]he weight and effect of the evidence . . . is a matter	18
reserved for determination by the trier of fact.”). Taken together, substantial	19
evidence supports the jury’s finding that Defendant’s entry was unauthorized.	20

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C. 	Intent to Commit a Theft	1
{11} 	Defendant argues that the bulk of the evidence presented by the State in	2
support of the intent element was impermissibly speculative. At the same time,	3
Defendant 	also 	notes 	that 	our 	precedent 	establishes 	that 	a 	finding 	of 	“[a]n	4
unauthorized presence in a structure is evidence from which a jury could reasonably	5
infer the necessary intent to commit a felony or theft therein.” State v. Jennings,	6
1984-NMCA-051, ¶ 14, 102 N.M. 89, 691 P.2d 882; see State v. Castro, 1979-	7
NMCA-023, ¶ 19, 92 N.M. 585, 592 P.2d 185 (“The burglarious intent can be	8
reasonably and justifiably inferred from the unauthorized entry alone.”), overruled	9
on other grounds by Sells v. State, 1982-NMSC-125, ¶¶ 7-10, 98 N.M. 786, 653 P.2d	10
162. While somewhat unclear, Defendant appears to challenge the constitutionality	11
of this principle. However, as illustrated below, because we hold that there was	12
substantial evidence apart from Defendant’s unauthorized presence, and because	13
Defendant’s argument is undeveloped, we do not reach this claim. See State v.	14
Duttle, 2017-NMCA-001, ¶ 15, 387 P.3d 885 (“For this Court to rule on an	15
inadequately briefed constitutional issue would essentially require it to do the work	16
on behalf of [the d]efendant.”); see also State v. Guerra, 2012-NMSC-014, ¶ 21, 278	17
P.3d 1031 (explaining that appellate courts do not review unclear or undeveloped	18
arguments).	19

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{12} 	“Intent is rarely provable by direct evidence. If there are reasonable inferences	1
and sufficient direct or circumstantial facts, then the issue of intent is determinable	2
by the jury and will not be reweighed by the reviewing court.” Jennings, 1984-	3
NMCA-051, ¶ 14. “An inference is merely a logical deduction from facts and	4
evidence.” State v. Romero, 1968-NMCA-078, ¶ 17, 79 N.M. 522, 445 P.2d 587	5
(internal quotation marks and citation omitted). The intent of a defendant is an	6
inquiry for the jury because it is a question of fact. State v. Wasson, 1998-NMCA-	7
087, ¶ 12, 125 N.M. 656, 964 P.2d 820.	8
{13} 	We are not persuaded that the jury premised its verdict regarding Defendant’s	9
intent on impermissible speculation. Defendant concedes that his wig, face-covering,	10
and location in the corner of a storage portable after a silent alarm was triggered are	11
pieces of evidence from which the jury could have inferred his intent. In support of	12
his argument that the remaining evidence was impermissibly speculative, Defendant	13
first notes that the jury acquitted him of possession of burglary tools, and that no	14
testimony established a correlation between the alleged burglary tools and the	15
scratches on the portable door. While this may be true, it is inapposite to our analysis,	16
because “possession of burglary tools is not necessarily involved in burglary. . . .	17
One can make . . . an unauthorized entry with the necessary intent with or without	18
burglary tools.” State v. Everitt, 1969-NMCA-010, ¶ 29, 80 N.M.41, 450 P.2d 927.	19

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{14} 	Defendant further notes that the district court found insufficient evidence to	1
support 	the charge of larceny because ownership 	of the projector found 	in	2
Defendant’s bag was not established. This likewise does nothing to advance	3
Defendant’s claim. Whether the State was able to prove a theft occurred is irrelevant,	4
as “[b]urglary is a standalone crime and does not require the requisite intended crime	5
be completed after entry.” Ford, 2019-NMCA-073, ¶ 13; see Muqqddin, 2012-	6
NMSC-029, ¶ 39 (“Larceny . . . is not necessary to commit burglary.”); Jennings,	7
1984-NMCA-051, ¶ 14 (“Proof of actual theft is unnecessary to support a burglary	8
conviction.”).	9
{15} 	Officer Lopez-Sadler testified that when she found Defendant, he had a	10
screwdriver in his hand and a black bag over his shoulder. She stated that he was in	11
the immediate vicinity of another screwdriver and two flashlights. A headlamp was	12
also recovered from the scene. Her testimony established that the portable where	13
Defendant was found was used primarily to store goods, and Defendant told her that	14
he planned to sell the bag in his possession.	15
{16} 	The facts and circumstances surrounding Defendant’s disguised presence in	16
the corner of a storage portable on APS property after midnight allowed the jury to	17
reasonably infer that Defendant intended to commit a theft, because “there [was] a	18
likely correlation between those facts and the conclusion.” State v. Maes, 2007-	19
NMCA-089, ¶ 18, 142 N.M. 276, 164 P.3d 975 (internal quotation marks and	20

10
citation omitted). Here, we cannot say that “a different conclusion is more closely	1
correlated with the facts than the [jury’s] chosen conclusion,” such that the inference	2
is not reasonable. Id. (internal quotation marks and citation omitted).	3
CONCLUSION	4
{17} 	For the foregoing reasons, we affirm Defendant’s conviction.	5
{18} 	IT IS SO ORDERED.	6
7
SHAMMARA H. HENDERSON, Judge	8
WE CONCUR:	9
______________________________	10
JENNIFER L. ATTREP, Judge	11
______________________________	12
KRISTINA BOGARDUS, Judge	13