August 15, 2019- State of New Mexico v. Andrew Christian Ford, No. A-1-CA-36450

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1 	IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 	STATE OF NEW MEXICO,
3 	Plaintiff-Appellee,
4 	v. 	No. A-1-CA-36450
5 ANDREW CHRISTIAN FORD,
6 	Defendant-Appellant.
7 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
8 	Alisa A. Hart, District Judge
9 	Hector H. Balderas, Attorney General
10 	Santa Fe, NM
11 	Walter Hart, Assistant Attorney General
12 	Albuquerque, NM
13 	for Appellee
14 	Bennett J. Baur, Chief Public Defender
15 	Santa Fe, NM
16 	Steven J. Forsberg, Assistant Appellate Defender
17 	Albuquerque, NM
18 	for Appellant
19 	MEMORANDUM OPINION
20 	MEDINA, Judge.
21 	{I} 	Defendant 	challenges 	the 	sufficiency 	of 	the 	evidence 	supporting 	his
22 	convictions for receiving or transferring a stolen vehicle, contrary to NMSA 1978,
23 	Section 30- l 6D-4 (2009), and possession of burglary tools, contrary to NMSA 1978,
Court of Appeals of New Mexico
Filed 8/15/2019 1:24 PM

1 Section 	30-16-5 	(1963). 	We 	conclude 	the 	evidence 	is 	sufficient 	to 	support
2 Defendant' s conviction for receiving or transferring a stolen vehicle but it is not
3 	sufficient to support his conviction for possession of burglary tools. We therefore
4 affirm in part and reverse in part.
5 BACKGROUND
6 	{2} 	The testimony at trial was as follows. On February 20, 2015, Cirilo Holguin
7 purchased a dark silver, four-door 1998 Honda Civic. Four days later on February
8 24, 2015, the Civic was stolen from a parking lot in Albuquerque, New Mexico.
9 Holguin reported the auto theft to the Albuquerque Police Department (APD).
10 Holguin had not yet had time to register the car but did have a temporary thirty-day
11 	permit from the dealer attached to the front windshield. Holguin provided APD with
12 	a description of his vehicle but was unable to provide the vehicle identification
13 	number when he reported the theft.
14 	{3} 	On March 12 , 2015 , Albuquerque Police Detective Aaron Jones, who was
15 	acting undercover at the time, witnessed Defendant driving a vehicle near Carlisle
16 and 1-40 in Albuquerque that matched the description of Holguin ' s stolen Civic.
17 	Detective Jones and other officers followed the Civic until it stopped in a parking
18 	lot. Detective Jones subsequently detained both Defendant and his passenger.
19 	{4} 	Detective Jones testified that he saw a screwdriver located in the center
20 	console of the vehicle and that the ignition had been "punched." Detective Jones
2

1 explained that a screwdriver could be used to start a vehicle with a punched ignition.
2 Officers did not find keys either in the ignition or at the scene. According to
3 Detective Jones, he did not tag the screwdriver into evidence because the tow truck
4 driver needed it to start and load the vehicle.
5 {S} 	APD contacted Holguin 	by mail to inform him that his Civic had been
6 recovered . Holguin drove to a tow lot off Jefferson Street in Albuquerque, where he
7 identified the Civic as his vehicle. Holguin testified that the tires and rims had been
8 replaced with poorer quality tires, the roof had been stained, the backseat was
9 damaged, and the body had been dented. In addition, the temporary dealer permit
10 	had been moved from the windshield to the back of the car. Holguin had to use a
11 	screwdriver to operate his car because his keys no longer made contact to start the
12 	vehicle.
13 	{6} 	This appeal followed.
14 DISCUSSION
15 	Standard of Review
16 {7} 	"The test for sufficiency of the evidence is whether substantial evidence of
17 either a direct or circumstantial nature exists to support a verdict of guilty beyond a
18 	reasonable doubt with respect to every element essential to a conviction." State v.
19 	Montoya, 2015-NMSC-010, 1 52, 345 P.3d 1056 (internal quotation marks and
20 	citation omitted). We "view the evidence in the light most favorable to the guilty
3

1 verdict, 	indulging 	all 	reasonable 	inferences 	and 	resolving 	all 	conflicts 	in 	the
2 	evidence in favor of the verdict." State v. Cunningham, 2000-NMSC-009,, 26, 128
3 N.M. 711, 998 P.2d 176. We disregard all evidence and inferences that support a
4 	different result. See State v. Rojo, 1999-NMSC-001,, 19, 126 N.M. 438, 971 P.2d
5 	829.
6 	{8} 	Despite our deferential approach, our responsibility is to "ensure that the
7 jury's decisions are supportable by evidence in the record, rather than mere guess or
8 	conjecture." State v. Slade, 2014-NMCA-088,, 14,331 P.3d 930 (internal quotation
9 	marks and citation omitted). Our inquiry requires that we "distinguish between
10 	conclusions 	based 	on 	speculation 	and 	those 	based 	on 	inferences[.]" 	Id. 	"A
11 	reasonable inference is a conclusion arrived at by a process of reasoning which is a
12 	rational and logical deduction from facts admitted or established by the evidence."
13 	Id. (alterations, internal quotation marks, and citation omitted).
14 	{9} 	When a challenge to the sufficiency of the evidence "requires us to engage in
15 	statutory interpretation to determine whether the facts of [a] case, when viewed in
16 the light most favorable to the verdict, are legally sufficient to sustain a conviction,"
17 	we apply a de novo standard of review. State v. Barragan, 2001-NMCA-086,, 24,
18 	131 N.M. 281, 34 P.3d 1157,overruled on other grounds by State v. Tollardo, 2012-
19 NMSC-008,, 37 n.6, 275 P.3d 110.
4

1 Defendant's Conviction for Receiving or Transferring a Stolen Vehicle Is
2 	Supported by Sufficient Evidence
3 {IO} 	Pur suant to State v. Franklin , 1967-NMSC-151 , 78 N.M . 127, 428 P.2d 982,
4 and State v. Boye r, 1985-NMCA-029, 103 N.M. 655, Defendant argues the evidence
5 was insufficient to prove that the vehicle he was driving was the car stolen from
6 Holguin. At trial, Detective Jones testified that the stolen vehicle he observed
7 Defendant driving matched the description of the stolen Civic and that the same was
8 towed to Knittles Towing on Jefferson Street. Holguin testified he retrieved his Civic
9 	from the Knittles tow yard on Jefferson Street, upon receipt of a card from the police
10 notifying him that his vehicle was located there. Holguin testified that even though
11 	the Civic was damaged, it looked like his vehicle and had the same temporary dealer
12 tag. We conclude that the testimony of Detective Jones and Holguin could support
13 	the jurors' determination that Defendant was in possession ofHolguin ' s stolen Civic.
14 	The 	Evidence 	Was 	Insufficient 	to 	Support 	Defendant's 	Conviction 	for
15 	Possession of Burglary Tools
16 {11} 	Defendant argues the evidence is insufficient to support his conviction for
17 possession of burglary tools because there was (I) no evidence of a burglary, (2) no
18 	evidence that he had access to the screwdriver before he entered the vehicle, and (3)
19 	no evidence that he intended to use the screwdriver to make an unauthorized entry.
20 The State argues that, as defined in Section 30-16-5, a "burglary tool" includes but
21 	is not limited to a tool used for breaking and entering and therefore the evidence
5

1 showing Defendant's use of the screwdriver to "possess the vehicle by driving it,"
2 was evidence of his intent to use the screwdriver to commit a burglary. The State
3 dismisses the issue of whether the screwdriver was inside the vehicle before or after
4 entry as "wholly irrelevant."
5 	{12} 	The arguments on appeal require us to interpret and consider the relationship
6 between the burglary and possession of burglary tools statutes. "Our primary goal
7 when 	interpreting 	statutory 	language 	is 	to 	give 	effect 	to 	the 	intent 	of the
8 	[L]egislature." State v. Torres, 2006-NMCA-106, ,r 8, 140 N.M. 230, 141 P.3d 1284.
9 "We do this by giving effect to the plain meaning of the words of [a] statute, unless
10 this leads to an absurd or unreasonable result." State v. Marshall, 2004-NMCA-l 04,
11 	,r 7, 136 N.M. 240, 96 P.3d 801.
12 	{13} 	Burglary is defined as "the unauthorized entry of any vehicle, watercraft,
13 	aircraft, dwelling or other structure, movable or immovable, with the intent to
14 	commit any felony or theft therein." NMSA 1978, § 30-16-3 (1971). Burglary is
15 	"c omplete upon entry with the requisite intent." State v. Office of Pub. Def ex rel.
16 Muqqddin, 2012-NMSC-029, ,r 60, 285 P.3d 622. While intent to commit any theft
17 	or felony is an element of burglary, entry is the primary concern protected by the
18 	burglary statute. See id. ,r,r 41, 60. Burglary is a standalone crime and does not
19 	require the requisite intended crime be completed after entry. See State v. Ramirez,
20 	2008-NMCA-165, ,r 6, 145 N.M. 367, 198 P.3d 866.
6

1 {14} 	The possession of burglary tools statute states, "Possession of burglary tools
2 consists of having in the person's possession a device or instrumentality designed or
3 commonly used for the commission of burglary and under circumstances evincing
4 an intent to use the same in the commission of burglary." Section 30-16-5. The
5 statute explicitly requires possession of tools "designed or commonly used for the
6 commission of burglary and under circumstances evincing an intent to use the same
7 	in the commission of burglary." Id. ( emphasis added). The Legislature' s specific use
8 of the term burglary indicates that the tools must be used, or intended to be used, in
9 the commission of a burglary. Because burglary is completed upon entry, it is at the
10 	moment of entry or prior to the entry that the use or intended use of burglary tools
11 	matters. It therefore follows that burglary tools must be used, or intended to be used,
12 	to facilitate entry.
13 	{IS} 	Consistent with the statute and UJI 14-1633 NMRA, the jury was instructed
14 	that in order to convict Defendant of possession of burglary tools, it had to find,
15 	beyond 	a reasonable doubt, 	each 	of the following elements 	of the crime: 	( 1)
16 Defendant had in his possession a screwdriver which is designed or commonly used
17 	in the commission of a burglary; (2) Defendant intended that such tool or device be
18 	used for the purpose of committing a burglary; and (3) that this happened in New
19 	Mexico on or about March 12, 2015. The second element specifically required the
20 	State prove that Defendant possessed the screwdriver with intent to use it in the
7

1 commission of a burglary.' See State v. Smith, 1986-NMCA-089, ,I 7,104 N.M. 729,
2 726 P.2d 883 ("Jury instructions become the law of the case against which the
3 sufficiency of the evidence is to be measured.").
4 	{16} 	The 	State directs 	us 	to 	State 	v. Hernandez, 	m which 	we 	affirmed 	the
5 defendant 's conviction for possession of burglary tools despite the fact that the tools
6 were not used to gain access to the vehicle but instead as a means of starting the car.
7 	1993-NMCA-132, ,I 2, 	116 N.M. 	562, 865 P.2d 	1206. Hernandez 	is 	factually
8 distinguishable. In that case, the defendant purchased a screwdriver at a nearby store,
9 opened an unlocked door to a vehicle that did not belong to him, and tried to start
10 the car by inserting the screwdriver into the ignition. Id. ,I 2. On appeal, the defendant
11 	argued 	that 	there 	was 	not 	sufficient 	evidence 	to 	support 	his 	convictions 	for
12 	possession of burglary tools because "an intent to steal the car is not an intent to
13 	commit a theft 'therein.' " Id. ,I 6. In other words, according to the defendant, the
14 	burglary statute required proof of intent to steal or otherwise do wrong within the
15 	car, not proof of an intent to steal the car itself. Id.
16 	{17} 	We rejected the defendant's argument, concluding that theft of a car can be
17 accomplished from within the vehicle, reasoning that the term "therein" in the
18 	burglary statute indicated that the crime exists if the defendant formed an intent to
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 commit a crime "in that place" including an intent to commit car theft. Id. , 	7
2 (internal 	quotation 	marks 	and 	citation 	omitted). 	The 	fact 	that 	the 	door 	was
3 	unlocked-and the defendant did not have to use the screwdriver to gain entry-did
4 not negate the evidence that the defendant purchased the screwdriver with intent to
5 use it to commit the burglary. It was the defendant's intent to use the screwdriver-
6 prior to entry- 	that supported his conviction for possession of burglary tools. See
7 State v. Jennings , 1984-NMCA-051 , , 	14 , 102 N.M. 89, 691 P.2d 882 (stating that
8 the intent to use, rather than actual use, will support conviction).
9 	{18} 	Unlike the facts in Hernandez, where the defendant had a screwdriver in his
10 possession before he entered the vehicle, there is no evidence here that Defendant
11 	possessed the 	screwdriver before he entered Holguin ' s Civic. 	Detective Jones
12 testified that he witnessed Defendant driving the Civic and that he later saw a
13 	screwdriver in the center console. While this evidence is sufficient to prove that at
14 	some point Defendant entered the Civic and may have possessed the screwdriver
15 	after entry, it does not establish that he possessed the screwdriver while entering the
16 vehicle. Indeed, the State concedes that "no evidence was submitted that Defendant
17 	used or intended to use the screwdriver to obtain unauthorized entry to the vehicle,
18 	and that it would be speculation to so conclude from Defendant' s possession of the
19 	screwdriver." Because there was no evidence that Defendant had the screwdriver
20 	before he entered the vehicle or that he had any intent to use the screwdriver to make
9

1 the unauthorized entry into the vehicle, there is insufficient evidence to support
2 Defendant ' s conviction for possession of burglary tools.
3 	CONCLUSION
4 	{19} 	Based on the forgoing, we affirm Defendant's conviction for receiving or
5 transferring a stolen vehicle, and reverse his conviction for possession of burglary
6 tools.
7 	{20}
8
9
IT IS SO ORDERED.
10 	WE CONCUR:
II 	~
12 iEANISEE, Judge
1
14 BRIAN A n-::."Lii"fA:ArD
10