{ "id": 4362477, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. ANTHONY HOLT, Defendant-Appellant", "name_abbreviation": "State v. Holt", "decision_date": "2015-06-19", "docket_number": "No. 35,298; Docket No. 33,090", "first_page": "200", "last_page": "215", "citations": [ { "type": "official", "cite": "2015-NMCA-073" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "2000-NMSC-009", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 106493 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 26" }, { "parenthetical": "internal quotation marks and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/128/0711-01" ] }, { "cite": "187 So. 2d 51", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9828567 ], "weight": 4, "year": 1966, "pin_cites": [ { "page": "52" }, { "page": "52-53" }, { "page": "53" } ], "opinion_index": 0, "case_paths": [ "/so2d/187/0051-01" ] }, { "cite": "4 Ala. 643", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 8495590 ], "weight": 3, "year": 1843, "pin_cites": [ { "page": "644", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "646" } ], "opinion_index": 0, "case_paths": [ "/ala/4/0643-01" ] }, { "cite": "310 S.W.2d 942", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10182411 ], "weight": 3, "year": 1958, "pin_cites": [ { "page": "944" }, { "page": "945-46" } ], "opinion_index": 0, "case_paths": [ "/sw2d/310/0942-01" ] }, { "cite": "2003-NMSC-011", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 15883 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/133/0661-01" ] }, { "cite": "2002-NMCA-001", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 183081 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/131/0419-01" ] }, { "cite": "111 N.M. 263", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715157 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/111/0263-01" ] }, { "cite": "1990-NMCA-122", "category": "reporters:neutral", "reporter": "NMCA", "weight": 2, "pin_cites": [ { "page": "\u00b6 37" }, { "page": "\u00b6 37" } ], "opinion_index": 0 }, { "cite": "2011-NMCA-095", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4250773 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 7" }, { "page": "\u00b6\u00b6 6-8" }, { "page": "\u00b6 7" } ], "opinion_index": 0, "case_paths": [ "/nm/150/0536-01" ] }, { "cite": "221 P.2d 392", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 264234 ], "weight": 5, "year": 1950, "pin_cites": [ { "page": "396", "parenthetical": "holding that there was an entry where the defendant had broken a screen door even though he had not opened the wooden door behind it" }, { "page": "394" }, { "page": "395" }, { "page": "395-96" } ], "opinion_index": 0, "case_paths": [ "/kan/169/0679-01" ] }, { "cite": "119 N.E.2d 550", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1954, "pin_cites": [ { "page": "553", "parenthetical": "stating that a \"breaking\" sufficient for burglary \"includes the putting aside of any material part of the building intended as a security against invasion, such as removing a window screen\" (emphasis added)" } ], "opinion_index": 0 }, { "cite": "307 P.3d 1038", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 4063161 ], "year": 2013, "pin_cites": [ { "page": "1040-41", "parenthetical": "examining \"whether the 'external boundarfy]' of the structure, as that phrase is used in [Section 13-1501(3" } ], "opinion_index": 0, "case_paths": [ "/ariz/232/0611-01" ] }, { "cite": "193 S.E. 924", "category": "reporters:state_regional", "reporter": "S.E.", "case_ids": [ 2051239 ], "year": 1937, "pin_cites": [ { "page": "925" } ], "opinion_index": 0, "case_paths": [ "/sc/185/0111-01" ] }, { "cite": "467 N.E.2d 846", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "849" } ], "opinion_index": 0 }, { "cite": "247 Cal. Rptr. 396", "category": "reporters:state", "reporter": "Cal. Rptr.", "weight": 8, "year": 1988, "pin_cites": [ { "page": "399" }, { "page": "399" }, { "parenthetical": "second, fourth, and fifth alterations in original" }, { "page": "397" }, { "page": "399" } ], "opinion_index": 0 }, { "cite": "281 P.3d 68", "category": "reporters:state_regional", "reporter": "P.3d", "weight": 2, "year": 2012, "pin_cites": [ { "page": "71" } ], "opinion_index": 0 }, { "cite": "46 P.3d 920", "category": "reporters:state_regional", "reporter": "P.3d", "weight": 12, "year": 2002, "pin_cites": [ { "page": "925" }, { "page": "924" }, { "page": "927" }, { "page": "926" }, { "page": "926" }, { "page": "925" }, { "page": "1041" } ], "opinion_index": 0 }, { "cite": "119 N.M. 788", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561306 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/119/0788-01" ] }, { "cite": "1995-NMCA-028", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6\u00b6 10-11" } ], "opinion_index": 0 }, { "cite": "1999-NMCA-018", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 827405 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 13" }, { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0579-01" ] }, { "cite": "110 N.M. 314", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 716935 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/110/0314-01" ] }, { "cite": "1990-NMSC-068", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0 }, { "cite": "285 P.3d 622", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2012-NMSC-029", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4188995 ], "weight": 7, "pin_cites": [ { "page": "\u00b6 38" }, { "page": "\u00b6 40" }, { "page": "\u00b6\u00b6 40-43" }, { "page": "\u00b6 44" }, { "page": "\u00b6 48" }, { "page": "\u00b6 45" }, { "page": "\u00b6\u00b6 1, 49" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0433-01" ] }, { "cite": "Tex. Penal Code Ann. \u00a7 30.02", "category": "laws:leg_statute", "reporter": "Tex. Code Ann.", "year": 2007, "pin_cites": [ { "page": "(a)(1)", "parenthetical": "prohibiting entry of a building \"or any portion of a building\"" } ], "opinion_index": 0 }, { "cite": "Ariz. Rev. Stat. Ann. \u00a7 13-1501", "category": "laws:leg_statute", "reporter": "Ariz. Rev. Stat. Ann.", "year": 2012, "pin_cites": [ { "page": "(3)", "parenthetical": "defining \"[e]ntry\" as \"the intrusion of any part of any instrument or any part of a person's body inside the external boundaries of a structure\" (emphasis added)" } ], "opinion_index": 0 }, { "cite": "332 P.3d 281", "category": "reporters:state_regional", "reporter": "P.3d", "year": 1971, "opinion_index": 0 }, { "cite": "2014-NMSC-028", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4240571 ], "year": 1971, "pin_cites": [ { "page": "\u00b6 16" } ], "opinion_index": 0, "case_paths": [ "/nm-app/6/0516-01" ] }, { "cite": "2001-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 352596 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 6" } ], "opinion_index": 0, "case_paths": [ "/nm/130/0006-01" ] }, { "cite": "2004-NMSC-032", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 1224669 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 8" }, { "parenthetical": "internal quotation marks and citation omitted" }, { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/136/0372-01" ] }, { "cite": "294 P.3d 1235", "category": "reporters:state_regional", "reporter": "P.3d", "weight": 2, "opinion_index": 0 }, { "cite": "2013-NMSC-001", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4191197 ], "pin_cites": [ { "page": "\u00b6 19" } ], "opinion_index": 0, "case_paths": [ "/nm-app/3/0204-01" ] }, { "cite": "60 P.3d 333", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 12260754 ], "year": 2002, "pin_cites": [ { "page": "340" } ], "opinion_index": 2, "case_paths": [ "/haw/100/0383-01" ] }, { "cite": "195 P.3d 1171", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 8205872 ], "year": 2008, "pin_cites": [ { "page": "1174" } ], "opinion_index": 2, "case_paths": [ "/p3d/195/1171-01" ] }, { "cite": "2015 WL 570299", "category": "reporters:specialty_west", "reporter": "WL", "year": 2015, "pin_cites": [ { "page": "**2-3", "parenthetical": "unreported case" } ], "opinion_index": 2 }, { "cite": "89 N.M. 297", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2866025 ], "weight": 2, "opinion_index": 2, "case_paths": [ "/nm/89/0297-01" ] }, { "cite": "1976-NMCA-054", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 2 }, { "cite": "720 S.E.2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "850", "parenthetical": "holding that no entry inside residence when only instrument that broke window crossed threshold to be \"inside the residence\"" } ], "opinion_index": 2 }, { "cite": "279 N.E.2d 179", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "pin_cites": [ { "page": "181", "parenthetical": "requiring \"intru[sion] into the building\"" } ], "opinion_index": 2 }, { "cite": "996 So. 2d 564", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 8170961 ], "pin_cites": [ { "page": "568" } ], "opinion_index": 2, "case_paths": [ "/so2d/996/0564-01" ] }, { "cite": "107 A.2d 13", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1954, "pin_cites": [ { "page": "15" } ], "opinion_index": 2 }, { "cite": "881 P.2d 965", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10356054 ], "year": 1994, "pin_cites": [ { "page": "969", "parenthetical": "\"A simple passage by any part of the body over the door's threshold can amount to entry[.]\"" } ], "opinion_index": 2, "case_paths": [ "/p2d/881/0965-01" ] }, { "cite": "112 S.W. 855", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1908, "pin_cites": [ { "page": "855", "parenthetical": "holding that breaking without entry, however slight, is not burglary" } ], "opinion_index": 2 }, { "cite": "280 A.2d 805", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 8092237 ], "year": 1971, "pin_cites": [ { "page": "808", "parenthetical": "requiring \"intrusion into the building of any part of the body\"" } ], "opinion_index": 2, "case_paths": [ "/a2d/280/0805-01" ] }, { "cite": "549 N.E.2d 1191", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 2 }, { "cite": "238 P.3d 827", "category": "reporters:state_regional", "reporter": "P.3d", "year": 2008, "opinion_index": 2 }, { "cite": "602 N.W.2d 764", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 11559218 ], "year": 1999, "pin_cites": [ { "page": "771" } ], "opinion_index": 2, "case_paths": [ "/nw2d/602/0764-01" ] }, { "cite": "278 P.3d 259", "category": "reporters:state_regional", "reporter": "P.3d", "weight": 6, "year": 2012, "pin_cites": [ { "page": "263", "parenthetical": "construing Valencia and Nible" }, { "page": "265" }, { "page": "264" }, { "page": "261", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "264" } ], "opinion_index": 2 }, { "cite": "2002-NMCA-109", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15587 ], "weight": 3, "year": 2014, "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 2, "case_paths": [ "/nm/133/0032-01" ] }, { "cite": "109 N.M. 44", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1590289 ], "weight": 3, "opinion_index": 2, "case_paths": [ "/nm/109/0044-01" ] }, { "cite": "187 So. 2d 51", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9828567 ], "year": 1966, "pin_cites": [ { "page": "53" } ], "opinion_index": 2, "case_paths": [ "/so2d/187/0051-01" ] }, { "cite": "4 Ala. 643", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 8495590 ], "year": 1843, "pin_cites": [ { "parenthetical": "holding that reaching through shutters but not the window within was not \"entry\"" } ], "opinion_index": 2, "case_paths": [ "/ala/4/0643-01" ] }, { "cite": "310 S.W.2d 942", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10182411 ], "year": 1958, "pin_cites": [ { "page": "945", "parenthetical": "\"Literally, 'entry' is the act of going into the place after a breach has been effected[.]\"" } ], "opinion_index": 2, "case_paths": [ "/sw2d/310/0942-01" ] }, { "cite": "1990-NMCA-122", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 37" } ], "opinion_index": 2 }, { "cite": "2011-NMCA-095", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4250773 ], "weight": 2, "pin_cites": [ { "page": "\u00b6 7" } ], "opinion_index": 2, "case_paths": [ "/nm/150/0536-01" ] }, { "cite": "221 P.2d 392", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 264234 ], "weight": 2, "year": 1950, "pin_cites": [ { "page": "394" } ], "opinion_index": 2, "case_paths": [ "/kan/169/0679-01" ] }, { "cite": "119 N.E.2d 550", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1954, "pin_cites": [ { "page": "553" } ], "opinion_index": 2 }, { "cite": "307 P.3d 1038", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 4063161 ], "weight": 2, "year": 2013, "pin_cites": [ { "page": "1041" } ], "opinion_index": 2, "case_paths": [ "/ariz/232/0611-01" ] }, { "cite": "2012-NMSC-029", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4188995 ], "weight": 11, "pin_cites": [ { "page": "\u00b645" }, { "page": "\u00b6 48" }, { "page": "\u00b6 37" }, { "page": "\u00b6 1" }, { "page": "\u00b6\u00b6 22, 37" }, { "page": "\u00b6 3" }, { "page": "\u00b6 50" }, { "page": "\u00b6 40" }, { "page": "\u00b6 38" }, { "page": "\u00b6 47" } ], "opinion_index": 2, "case_paths": [ "/nm-app/2/0433-01" ] } ], "analysis": { "cardinality": 1724, "char_count": 51490, "ocr_confidence": 0.751, "pagerank": { "raw": 7.146537185795578e-08, "percentile": 0.4284803863082365 }, "sha256": "3d0e5946c5dd02008c634b1e9f9f72771e586d7a2508c9dbe111fbb81b08056c", "simhash": "1:632bdd94dea6d844", "word_count": 8434 }, "last_updated": "2023-07-14T20:13:54.428467+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MICHAEL D. BUSTAMANTE, Judge", "I CONCUR:", "JAMES J. WECHSLER, Judge", "RODERICK T. KENNEDY, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. ANTHONY HOLT, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nBUSTAMANTE, Judge.\n{1} Anthony Holt (Defendant) was trying to remove a window screen from Carolyn Stamper\u2019s (Stamper) home when he noticed her through the window. Although he turned and left the premises without breaching the window, he was convicted of one count of breaking and entering and now appeals on two grounds. First, he argues that the Legislature did not intend to punish as breaking and entering an intrusion into the space between the screen and the window. Second, he maintains that the evidence was insufficient for the jury to conclude that he in fact entered that space. We affirm.\nBACKGROUND\n{2} Stamper, a resident of Las Cruces, New Mexico, was relaxing on her sofa one December afternoon when she heard the doorbell ring and a rustling sound at the front door. She did not see anyone through the peephole in the door. She then heard a \u201cmetal on metal\u201d sound at the window, which was approximately seven feet from the front door. The window was open approximately four inches because Stamper\u2019s \u201csmelly old dog\u201d was in the room with her. The curtains over the window were drawn except for a gap of about four inches. Through the gap, Stamper could see a man at the window who was working to remove the aluminum window screen. The screen was halfway removed from the window and the man was trying to get the screen free of the track at the bottom of the window frame. At trial, Stamper agreed with the State that while holding the screen, the man\u2019s \u201cfingers were ... in that area between the window and the screen[.]\u201d\n{3} After a few seconds, the man looked up and noticed Stamper. He said, \u201cOh, I\u2019m sorry,\u201d then turned and left. As he was leaving, Stamper told him, \u201cYou better be sorry, you thieff.]\u201d Stamper testified that the screen \u201cwas pretty well destroyed\u201d and had to be replaced. She also testified that she was frightened by the incident and that it \u201cwas the first time [she] had been confronted with this in [her] own home.\u201d\n{4} A jury convicted Defendant of one count of breaking and entering, contrary to NMSA 1978, Section 30-14-8(A) (1981). Additional facts are provided as necessary to our discussion.\nDISCUSSION\n{5} Defendant makes two arguments on appeal. First, he argues that the facts of this case do not fit within a breaking and entering charge, because entering the space between a screen and a window is not the same as entering the interior of a home or structure. Second, he argues that the evidence was not sufficient to support a conclusion that Defendant entered the space between the screen and window. We address these arguments in turn.\nThe Breaking and Entering Statute Encompasses Entry Into the Space Between the Screen and Window\n{6} Defendant argues that, even if his fingers were between the screen and the window, he cannot be convicted of breaking and entering. Defendant makes two contentions: (1) the plain language of the breaking and entering statute requires entry into the interior of a structure, i.e., entry beyond the last barrier to the structure\u2019s interior; and (2) the breaking and entering statute is ambiguous because it does not define the boundaries of a structure, and thus, under the rule of lenity, must be construed against the State. We interpret these arguments as alternatives because the rule of lenity applies only if, after examination of the plain language and other tools of statutory construction, the statute remains ambiguous. State v. Hall, 2013-NMSC-001, \u00b6 19, 294 P.3d 1235 (\u201cA statute is ambiguous for the purpose of the rule of lenity only if reasonable doubtpersists about a statute\u2019s intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute.\u201d (internal quotation marks and citation omitted)). After examining the statute\u2019s language and purpose, as well as cases interpreting it and similar statutes, we conclude that Defendant\u2019s conduct falls within that which the Legislature sought to punish. Based on our construction of the statute, we conclude that it is not ambiguous such that the rule of lenity applies. Id. Hence, we need not address Defendant\u2019s second argument.\n{7} Questions of statutory interpretation are reviewed de novo. State v. Smith, 2004-NMSC-032, \u00b6 8, 136 N.M. 372, 98 P.3d 1022. The goal of statutory interpretation is \u201cto ascertain and give effect to the intent of the Legislature.\u201d Id. (internal quotation marks and citation omitted). We begin by examining the \u201cplain language\u201d of the statute and, if that language is clear and unambiguous, we refrain from further construction. State v. Johnson, 2001-NMSC-001, \u00b6 6, 130 N.M. 6, 15 P.3d 1233. \u201cThe plain meaning rule, however, is only a guideline for determining the legislative intent. It is the responsibility of th[e] Court to search for and effectuate the purpose and object of the underlying statutes.\u201d Id. Thus, \u201c[t]he plain meaning rule \u2018must yield on occasion to an intention otherwise discerned in terms of equity, legislative history, or other sources.\u2019 \u201d Smith, 2004-NMSC-032, \u00b6 9 (citation omitted). Finally, \u201cstatutes relating to the same general topic should be interpreted in light of each other[.]\" State v. Parvilus, 2014-NMSC-028, \u00b6 16, 332 P.3d 281. As discussed in more detail below, we rely on the burglary statute, NMSA 1978, \u00a7 30-16-3 (1971), as an aid in our interpretation because of its similarities with the breaking and entering statute.\n{8} Section 30-14-8(A) defines \u201cbreaking and entering\u201d as\nthe unauthorized entry of any . . . dwelling or other structure, movable or immovable, where entry is obtained by fraud or deception, or by the breaking or dismantling of any part of the . . . dwelling or other structure, or by the breaking or dismantling of any device used to secure the . . . dwelling or other structure.\n{9} As it relates to the facts here,UJI 14-1410 NMRA requires the jury to find that (1) \u201c[t]he defendant entered [the structure] without permission\u201d and (2) \u201c[t]he entry was obtained by\u201d breaking or dismantling a part of the structure. Unlike in some other states\u2019 statutes, neither the breaking and entering statute nor the burglary statute states what delimits a structure. Compare \u00a7 30-14-8(A) and \u00a7 30-16-3 with Ariz. Rev. Stat. Ann. \u00a7 13-1501(3) (2012) (defining \u201c[e]ntry\u201d as \u201cthe intrusion of any part of any instrument or any part of a person\u2019s body inside the external boundaries of a structure\u201d (emphasis added)). Nor do they state that entry into any part of a structure will suffice. Compare \u00a7 30-14-8(A) and \u00a7 30-16-3 with Tex. Penal Code Ann. \u00a7 30.02(a)(1) (West 2007) (prohibiting entry of a building \u201cor any portion of a building\u201d). In State v. Office of Public Defender ex rel. Muqqddin, the Supreme Court relied on the absence of such language in the burglary statute to reject the idea that entry into a part of a structure is equivalent to entry into the structure itself, stating that \u201cthe Legislature has given no indication that it intended [such equivalency].\u201d 2012-NMSC-029, \u00b6 38, 285 P.3d 622. While the breaking and entering statute provides that a breaking may be accomplished by \u201cbreaking or dismantling any part of the .. . dwelling or other structure,\u201d the phrase \u201cany part of\u2019 pertains only to breaking or dismantling, not to the protected spaces. Section 30-14-8(A); see Hale v. Basin Motor Co., 1990-NMSC-068, \u00b6 9, 110 N.M. 314, 795 P.2d 1006 (\u201cRelative and qualifying words, phrases, and clauses are to be applied to the words or phrase immediately preceding, and are not to be construed as extending to or including others more remote.\u201d (alterations, internal quotation marks, and citation omitted)). We conclude that the plain language of the breaking and entering statute sheds little light on the Legislature\u2019s intent as to the issue before us: whether the space between a window screen and an open window is protected space under the statute.\n{10} We next examine the purposes of the breaking and entering statute to determine whether the conduct here falls within the harm the Legislature sought to prevent. Because \u201cNew Mexico\u2019s breaking-and-entering statute is itself grounded in common law burglary[,]\u201d cases interpreting the burglary statute inform our analysis. State v. Rubio, 1999-NMCA-018, \u00b6 13, 126 N.M. 579, 973 P.2d 256; see UJI 14-1410, comm. cmt. (\u201cNew Mexico\u2019s breaking and entering statute is a type of statutory burglary.\u201d). Like burglary, \u201cthe purpose of New Mexico\u2019s breaking-and-entering statute is ... to protect possessory rights.\u201d Rubio, 1999-NMCA-018, \u00b6 15; Muqqddin, 2012-NMSC-029, \u00b6 40 (stating that burglary protects possessory rights). Those possessory rights, however, \u201cgo beyond the mere right to physical possession of an object\u201d and include the right to exclude, privacy interests, and \u201csecurity of habitation.\u201d Muqqddin, 2012-NMSC-029, \u00b6\u00b6 40-43. \u201cIt is the invasion of privacy and the victim\u2019s 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 statutes.\u201d Id. \u00b6 42.\n{11} \u201c[I]n order for an area to be considered prohibited space under [the burglary statute], it must have some sort of enclosure.\u201d Id. \u00b6 44 (citing State v. Foulenfont, 1995-NMCA-028, \u00b6\u00b6 10-11, 119 N.M. 788, 895 P.2d 1329). \u201c[I]t is this enclosed space that the Legislature intended to protect.\u201d Id. The burglary statute defines prohibited space as \u201cany vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable])]\u201d Section 30-16-3. The breaking and entering statute includes the same list. Section 30-14-8(A). In both statutes, the spaces in which possessory, privacy, and security interests are implicated are delineated by an enclosure. See Muqqddin, 2012-NMSC-029, \u00b6 44.\n{12} Our question thus becomes whether a window screen forms an enclosure such that penetration beyond the screen is sufficient for entry of a structure. \u201c[I]n general, the roof, walls, doors, and windows constitute parts of a building\u2019s outer boundary, the penetration of which is sufficient for entry.\u201d People v. Valencia, 46 P.3d 920, 925 (Cal. 2002), disapproved of by People v. Yarbrough, 281 P.3d 68 (Cal. 2012); see Muqqddin, 2012-NMSC-029, \u00b6 48 (stating that \u201c[a] window, by its nature, creates an opening in an enclosure.\u201d). But other types of boundaries might also suffice because \u201c[i]t is the nature of the enclosure that creates [prohibited space].\u201d Id. \u00b6 45. \u201c\u2018[T]he proper question is whether the nature of a structure\u2019s composition is such that a reasonable person would expect some protection from unauthorized intrusions. \u2019 \u201d Id. (quoting People v. Nible, 247 Cal. Rptr. 396, 399 (Ct. App. 1988), holding modified by Valencia, 46 P.3d at 924).\n{13} Relying in part on this test, the Muqqddin Court concluded that \u201ca vehicle\u2019s gas tank and wheel wells do not constitute protected space under [the burglary statute].\u201d Id. \u00b6 12. No New Mexico court since Muqqddin has used this test to address the legal question here. However, in Nible, the case from which the test was derived, the California Court of Appeals stated that \u201cthe focus of the question whether the penetration of a [partially open] window screen constitutes a burglarious entry must be on whether a reasonable person would believe a window screen provides some protection against unauthorized intrusions.\u201d 247 Cal. Rptr. at 399. It found that the answer to this question \u201cis unequivocally in the affirmative.\u201d Id. It went on to state that\nthe screen door [or window] is not to be considered as a mere protection against flies, but rather as a permanent part of the dwelling. The holdings [in case law] proceed, it would seem, on the grounds that the screen door [or window] is a part of the house on which the occupants rely for protection and that to open such a door [or window] is a violation of the security of the dwelling house which is the peculiar gravamen of a burglarious breaking.\nId. (second, fourth, and fifth alterations in original) (internal quotation marks and citation omitted). It concluded that \u201cwhen a screen which forms the outer barrier of a protected structure is penetrated, an entry has been made for purposes of the burglary statute.\u201d Id. We note that the Nible court found this analysis \u201cespecially apposite to the [facts in that] case, where the window screen was affixed in a slot in the frame with no handle or other device to facilitate its removal from the exterior of the apartment.\u201d Id. Here, Stamper testified that removal of the screen required use of a screwdriver or knife and that it was \u201cnot... a snap\u201d to remove. In addition, in Nible, like here, the window behind the screen was partially open and the residence\u2019s occupants were inside. See id. at 397.\n{14} Similarly, in Valencia, the Supreme Court of California relied on a slightly different formulation of the test to conclude that \u201cpenetration into the area behind a window screen amounts to an entry of a building within the meaning of the burglary statute even when the window itself is closed and is not penetrated.\u201d Valencia, 46 P.3d at 927. The Court stated:\n[A] window screen is clearly part of the outer boundary of a building for purposes of burglary. A reasonable person certainly would believe that a window screen enclosed an area into which a member of the general public could not pass without authorization____[WJindow screens, which announce that intrusion is unauthorized, do not limit their message to flies but extend it to burglars as well.\nId.\n{15} Other courts examining similar circumstances have reached similar conclusions. For example, in Commonwealth v. Burke, the Massachusetts Supreme Court stated that \u201c[it could] find no support at common law for the view ... that... an entry must be accompanied by a removal of all remaining barriers (i.e., the inner window) for it to be actionable\u201d and held that \u201cthe more common view is that outer window coverings should be treated as part of the dwelling itself, and any entry beyond them, no matter if further impeded by additional window coverings, should be punished.\u201d 467 N.E.2d 846, 849 (Mass. 1984). It concluded that, therefore, \u201c[e]vidence that the defendant placed his hand between the broken storm window and the inner window would be sufficient to warrant a finding of an entry under [the Massachusetts burglary statute].\u201d Id. The South Carolina Supreme Court held in State v. Chappell that a screen covering a window \u201cwas more than a mere protection against flies and mosquitoes; it was an enclosing part of the dwelling house\u201d and that where the defendant \u201ctor[e] away\u201d the corner of the screen and \u201cinserted his hand through the hole thus made and raised the window sash[, t]his was not only a breaking, but was an entry sufficient in law to constitute burglary].]\u201d 193 S.E. 924, 925 (S.C. 1937); cf. State v. Kindred, 307 P.3d 1038, 1040-41 (Ariz. Ct. App. 2013) (examining \u201cwhether the \u2018external boundarfy]\u2019 of the structure, as that phrase is used in [Section 13-1501(3) of Arizona\u2019s burglary statute], is the exterior of the door, or whether a person or instrument must penetrate past the door in order to enter the structure\u201d and holding that \u201ca person must penetrate whatever forms a structure\u2019s outer boundary \u2014 a door, window, or wall, for example \u2014 -but need not go further to have entered the structure.\u201d); Barrick v. State, 119 N.E.2d 550, 553 (Ind. 1954) (stating that a \u201cbreaking\u201d sufficient for burglary \u201cincludes the putting aside of any material part of the building intended as a security against invasion, such as removing a window screen\u201d (emphasis added)); State v. Gatewood, 221 P.2d 392, 396 (Kan. 1950) (holding that there was an entry where the defendant had broken a screen door even though he had not opened the wooden door behind it).\n{16} Defendant points to cases using the term \u201cinterior\u201d in their analyses of \u201centry\u201d to support his contention that the breaking and entering statute requires some further penetration into the structure than occurred here. For example, in State v. Sorrelhorse, this Court stated that \u201cthe term \u2018entry\u2019 in the criminal code requires only the slightest penetration of an interior space.\u201d 2011-NMCA-095, \u00b6 7, 150 N.M. 536, 263 P.3d 313. Similarly, in State v. Reynolds, the Court noted that \u201c[a]ny penetration, however slight, of the interior space is sufficient [to constitute entry].\u201d 1990-NMCA-122, \u00b6 37, 111 N.M. 263, 804 P.2d 1082 (second alteration in original) (internal quotation marks and citation omitted). However, neither of these cases was using the term to address the question presented here. Rather, both Sorrelhorse and Reynolds were concerned with the extent to which the defendant penetrated the prohibited space. See Sorrelhorse, 2011-NMCA-095, \u00b6\u00b6 6-8; Reynolds, 1990-NMCA-122, \u00b6 37.\n{17} The question here, in contrast, has to do with what defines the prohibited space. \u201c[T]he established rule [is] that cases are not authority for propositions not considered[.]\u201d Padilla v. State Farm Mut. Auto. Ins. Co., 2002-NMCA-001, \u00b6 10, 131 N.M. 419, 38 P.3d 187 (internal quotation marks and citation omitted), aff\u2019d but criticized by, 2003-NMSC-011, 133 N.M. 661, 68 P.3d 901. Thus, we decline to ascribe undue significance to use of the word \u201cinterior\u201d in those cases.\n{18} Similarly, the dissent cites to out-of-state cases for the proposition that an \u201centry\u201d requires a crossing of a structure\u2019s threshold. See \u00b6 41. Several of these are directly on point. For example, in State v. Pigques, 310 S.W.2d 942, 944 (Mo. 1958), the defendant \u201chad entered into the space between [some] outer wooden doors and [an] inner wire-mesh door.\u201d The court thus considered \u201cwhether his entry into that space would constitute an entry into the building within the meaning of [Missouri\u2019s burglary statute].\u201d Id. Relying in part on the principle that entry requires a breach of the last barrier to the interior of the structure, the court held that the defendant had not completed a burglary but instead could be convicted only of attempted burglary. Id. at 945-46. In State v. McCall, on which Pigques relied, the Alabama Supreme Court considered whether there was an entry where the defendant \u201cwrested open the window shutters, and his hands protruded beyond the line made by the shutters when shut, . . . notwithstanding the sash remained down and the glass was unbroken.\u201d 4 Ala. 643, 644 (1843) (internal quotation marks and citation omitted). The court concluded that\n[i]t cannot be, that the common security of the dwelling house is violated by breaking one of the shutters of a door or window which has several. True, it weakens the security which the mansion is supposed to afford, and renders the breach more easy; but as additional force will be necessary before an entry can be effected, there can, under such circumstances, be no burglary committed.\nId. at 646. Thus, the court held that there was no burglary because \u201cthere was nothing but a breach of the blinds, and no entry beyond the sash window [and t]he threshold of the window had not been passed}.]\u201d Id.\n{19} Interestingly, another case relied on by the dissent takes a different approach. In Miller v. State, the defendant had cut a hole in the roof of a store, climbed into the attic, and cut a hole in the ceiling, but had not entered the interior of the store itself. 187 So. 2d 51, 52 (Fla. Dist. Ct. App. 1966). The defendant \u201ccontended] that breaking of the roof and the subsequent breaking of the ceiling [wa]s not enough to constitute entry.\u201d Id. The court stated that it \u201cwould be inclined to agree with [the defendant] if it were not for the fact that there [wa]s evidence in the record that there was an airspace between the roof and the ceiling. . .. [I]t is reasonable to conclude that it would be necessary for the [defendant] to intrude himself, or some part of himself, into the hole that he had created in the roof in order to cut a hole in the ceiling on the other side of the airspace.\u201d Id. 52-53. Hence, in Miller, entry beyond the last barrier into the store (the ceiling) was not required to effect an entry. In other words, an entry into the space between the outer barrier and inner barrier was sufficient for a breaking and entering charge. Id. at 53.\n{20} We recognize that the Pigques and McCall courts came to a conclusion different from ours and from the conclusions reached in Nible, Valencia, Burke, and Chappell. Faced with two competing analyses, we must choose the path most consonant with the purpose of our statute and Supreme Court precedent. We believe we have done so. Based on the test stated in Muqqddin and the reasoning of our sister states\u2019 courts, we conclude that a reasonable person would expect the window screen here to afford some protection from unauthorized intrusions. See Muqqddin, 2012-NMSC-029, \u00b6 45. Consequently, we conclude that if any part of Defendant entered the space between the screen and the window, he \u201centered\u201d the structure for purposes of the breaking and entering statute.\n{21} To the extent that Defendant argues that our holding will produce absurd results because \u201c[t]his interpretation would convict of [breaking and [ejntering any person who opens a screen door to knock on the door itself[,]\u201d we disagree because under the \u201creasonable belief test\u201d it would be unreasonable to believe that an unlocked screen door was a barrier \u201ca member of the general public could not pass without authorization.\u201d Valencia, 46 P.3d at 926.\n{22} In Muqqddin, the Supreme Court cautioned lower courts against \u201cexpanding] . . . the reach of. . . statute[s] . . . without any parallel change in the statute.\u201d 2012-NMSC-029, \u00b6\u00b6 1, 49. Our conclusion does not do so. In Muqqddin, the gas tank and wheel well were not enclosed spaces in which \u201cthings are stored and personal items can be kept private.\u201d Id. \u00b6 61. In contrast, a home is a structure the Legislature clearly intended to protect. See id. \u00b6 39 (stating that the common-law purpose of burglary \u2014 security of the home \u2014 still applies). Unlike the unenclosed parts of vehicles in Muqqddin, the screen here was no less a component of the home\u2019s enclosure than the walls, windows, or doors. Contrary to the dissent\u2019s assertion, our analysis does not depend on the perimeter or \u201cclose\u201d concept that was rejected in Muqqddin. Id. \u00b6 46. In rejecting that concept, the Muqqddin Court was specifically rejecting the idea of an \u201cimaginary plane created by some portion of a structure that is by its nature open to the elements.\u201d Id. Rather, our analysis is based on whether the window screen \u2014 a real, non-imaginary device \u2014 provided protection against intrusion and enclosed protected space. See id. \u00b6 45. Because we conclude that it did, Defendant\u2019s placement of his hands behind the window screen was an intrusion into the structure\u2019s enclosure and infringed on Stamper\u2019s possessory rights. Such conduct is associated with the \u201cfeeling of violation and vulnerability\u201d that the Legislature sought to prevent with the breaking and entering statute. See id. \u00b6 43.\nThere is Sufficient Evidence to Support the Jury\u2019s Conclusion That Defendant \u201cEntered\u201d the Structure\n{23} We turn next to Defendant\u2019s second argument that there was insufficient evidence that Defendant intruded into the structure at all. \u201cIn 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.\u201d State v. Cunningham, 2000-NMSC-009, \u00b6 26, 128 N.M. 711, 998 P.2d 176. After viewing the evidence in this light, we examine whether \u201cany rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.\u201d Id. (internal quotation marks and citation omitted).\n{24} To convict Defendant,the jury had to find that (1) \u201cthe defendant entered [Stamper\u2019s residence] without permission; the least intrusion constitutes an entry;\u201d and (2) \u201cthe entry was obtained by the dismantling of a window screen[.]\u201d See UJI 14-1410. As we have discussed, because the window screen was part of the enclosure around the home, any intrusion into the space between the screen and window constitutes an \u201centry\u201d for purposes of the breaking and entering statute. See Sorrelhorse, 2011-NMCA-095, \u00b6 7 (\u201c[T]he term \u2018entry\u2019 in the criminal code requires only the slightest penetration of an interior space.\u201d). Stamper testified that \u201c[she] saw this man, and he had the screen halfway off the window, and he had his hand on each side of the screen, and he was twisting it and turning it and looking down.... He was trying to get the screen off.\u201d She described Defendant\u2019s fingers as being \u201cover the screen.\u201d On redirect, she agreed with the State that Defendant\u2019s fingers \u201cwere then in that area between the window and the screen[.]\u201d Viewed in the light most favorable to the verdict, this testimony is sufficient to permit the jury to conclude that Defendant had intruded into the protected space between the screen and window.\nCONCLUSION\n{25} For the foregoing reasons, we affirm.\n{26} IT IS SO ORDERED.\nMICHAEL D. BUSTAMANTE, Judge\nI CONCUR:\nJAMES J. WECHSLER, Judge\nIn Yarbrough, the California Supreme Court \u201cdisapprove[d] as ill-considered dictum\u201d a statement in Valencia that an \u201cunenclosed balcony\u201d was not encompassed within the \u201creasonable belief test.\u201d Yarbrough, 281 P.3d at 71.\nWhereas the Nible court stated the test as \u201cwhether a reasonable person would believe a window screen provides some protection against unauthorized intrusions[,]\u201d 247 Cal. Rptr. at 399, the Valencia Court stated the test as \u201cwhether a reasonable person would believe that the element of the building in question enclosed an area into which a member of the general public could not pass without authorization.\u201d 46 P.3d at 926.\nThe dissent argues that Chappell does not support our conclusion. But the facts in that case are very similar to those here: the defendant tore a screen and reached through to raise the window sash. Id. at 925. There is no indication in that case that any part of the defendant\u2019s body went through the window itself. Id. Thus, like here, the requisite entry was accomplished by entering the space between the screen and (open) window.\nAlthough we agree with the dissent that Kindred is distinguishable because it relies on Arizona\u2019s burglary statute, which requires penetration of any \u201cexternal boundary,\u201d we disagree that the Kindred court \u201cfound no other authority,\u201d \u00b6 40, for its conclusion that \u201cinsertion of [a] pry bar into the door jamb constitutes entry as contemplated by\u201d that statute. Id. at 1041. Indeed, the court cited to five cases, including Burke, in support of its holding. Id.\nIn Barrick, the court analyzed only whether the rattling of the doors constituted a \u201cbreaking\u201d sufficient for attempted burglary if such a crime existed in Indiana. Id. at 553 n.l. It did not analyze whether an entry occurred. It is cited here for its recognition that a window screen serves as \u201csecurity against invasion.\u201d Id.\nAs stated in the dissent, the facts in Gatewood included entry into an enclosed porch attached to the house, which the court held was an entry sufficient for burglary. 221 P.2d at 394. \u201cThe entrance door to the screen porch, however, was not the only \u2018outer door\u2019 the appellant broke\u201d in that case. Id. at 395. The part of the opinion we rely on has to do with whether entry was accomplished where another screen door was \u201cnot only broken but a hook which fastened the door was lifted and the screen door was opened\u201d but the wooden door behind it was not opened. Id. at 395-96. The court concluded that \u201c[the defendant] did enter his hand and an arm, at least partially, when he unsuccessfully attempted to unlock the inside door with a key.\u201d Id. Thus, this portion of Gatewood supports our conclusion.", "type": "majority", "author": "BUSTAMANTE, Judge." }, { "text": "RODERICK T. KENNEDY,\nJudge (dissenting).", "type": "dissent", "author": "RODERICK T. KENNEDY," }, { "text": "KENNEDY, Judge\n(dissenting).\n{27} This Opinion unnecessarily expands the physical space into which \u201centry\u201d must occur for breaking and entering exactly as we have recently been warned against pursuing by our Supreme Court. By defining \u201centry\u201d through a solely judicial construction of the space to which it applies, the Opinion needlessly creates new definition for crimes that are already adequately defined. This Opinion for the first time establishes the outermost perimeter of a structure\u2019s space as what defines the scope of the word \u201centry\u201d for breaking and entering and, presumably, for burglary as well. [Op. \u00b618]. The Opinion, correctly, in my view, sees ambiguity in the central premise of \u201cwhat delimits a structure.\u201d [Op. \u00b6 9] It recognizes that the Arizona legislature has explicitly defined \u201centry\u201d as an \u201cintrusion . . . inside the external boundaries of a structure or unit of real property\u201d and that Texas\u2019s statute prohibits entry of a building \u201cor any portion of a building.\u201d Id. California accomplished expanding an intrusion within the exterior plane of a building judicially, an accomplishment the Majority now seeks to duplicate. I read Muqqddin as a restriction on what the Majority seeks to accomplish in this case. Accordingly, I do not believe Muqqddin\u2019s citation to Valencia and Nible was intended to encourage our changing the use of the word \u201centry\u201d by expanding the boundary of space to be entered in a way they took pains to criticize. Muqqddin, 2012-NMSC-029, \u00b645. The Supreme Court undid our long-standing tendency to expand the spaces covered by breaking and entering and burglary; embarking again here on that path is unwise and unnecessary. With regard to Valencia and Nible, our Supreme Court specifically stated no more than that \u201ca burglary can be committed through an open window[,]\u201d that I see as protecting from a penetration of interior protected space, not the outermost plane of structure. Muqqddin, 2012-NMSC-029, \u00b6 48.\n{28} Statutes are strictly construed against the state, and we are to resolve doubt about their construction in favor of the rule of lenity. State v. Bybee, 1989-NMCA- 071, \u00b6 12, 109 N.M. 44, 781 P.2d 316. Criminal statutes may not be made applicable beyond their intended scope if the legislative proscription is plain. Id. \u201cWe are not to enlarge or amend [a] statute by judicial fiat.\u201d Id. \u00b6 15. \u201cThe Legislature is free to define the prohibited space of burglary to include any part of almost anything. But absent a clearer intent to do so, we should not ourselves do that which the Legislature has declined to do. It is for the Legislature alone to define statutory criminal acts, and when it does not do so clearly, the rule of lenity compels judicial restraint.\u201d Muqqddin, 2012-NMSC-029, \u00b6 37. In Muqqddin, as here, the acts in that case constituting the crime were \u201calready punished under our statutes as other, lesser crimes.\u201d Id. \u00b6 50 (holding that judicially expanding the legal definition of a crime to include behavior already punished as other, lesser crimes transgresses legislative intent). We recently took this conservative approach instructed by Muqqddin to heart, overruling the holding in State v. Tower to hold that entry into a commercial establishment in violation of a no trespass notice was not a predicate \u201centry\u201d sufficient to fulfill the element of commercial burglary. 2002-NMCA-109, \u00b6 9, 133 N.M. 32, 59 P.3d 1264, overruled on other grounds by State v. Archuleta, 2015-NMCA-___, \u00b6 1, _P.3d_ (No. 32,794, Oct. 27, 2014). We should be so restrained in this case.\nPenetration of Mere Outer Perimeters as \u201cEntry\u201d Was Rejected in Muqqddin\n{29} In Muqqddin, our Supreme Court reversed a tortured construction of \u201centry\u201d by pointing out that this Court, over a period of decades, had engaged in an \u201cunprecedented . . . expansion\u201d of the reach of the burglary statute without there being corresponding legislative changes. 2012-NMSC-029, \u00b6 1. Our holding that \u201c[a]ny penetration of a vehicle\u2019s perimeter is ... a penetration of the vehicle itself,\u201d id. \u00b6 10 (internal quotation marks and citation omitted), led in the next case to our holding that the \u201cremoval of a vehicle\u2019s wheels is sufficient to constitute burglary.\u201d State v. Dominguez-Meraz, No. 30,832, mem. op. *1 (N.M. Ct. App. Sept. 15, 2010) (non-precedential). Relying on previous cases later criticized and overruled by our Supreme Court for expanding the nature of burglary, we again held that \u201c \u2018entry\u2019 in the criminal code requires only the slightest penetration of an interior space.\u201d Sorrelhorse, 2011-NMCA-095, \u00b6 7.\n{30} I disagree with the Majority\u2019s assessment of Sorrelhorse as not \u201caddress[ing] the question presented here\u201d because it concerns \u201cthe extent to which the defendant penetrated the prohibited space.\u201d [Op. \u00b6 16] Sorrelhorse specifically found \u201centry\u201d into the \u201cinterior space\u201d from the defendant\u2019s foot being forced inside the door of an apartment and then forcing its occupants even farther back inside. Id. By holding \u201centry\u201d to be into truly interior space, Sorrelhorse represents the direction we should follow. Who can dispute that the defendant \u201centered\u201d the prohibited space by crossing the threshold of the apartment? Reynolds was implicitly overruled by Muqqddin not on the extent of penetration, which was a hand\u2019s depth, but through questions about the validity of what constituted a prohibited structure and because the Legislature did not define a vehicle by its parts. Muqqddin, 2012-NMSC-029, \u00b6\u00b6 22, 37. For this reason, incorporating a boundary that resembles Texas\u2019s \u201cany part thereof\u2019 should be avoided.\n{31} The Supreme Court skeptically recognized that some states include parts of \u201calmost anything\u201d in burglary statutes involving vehicles, but chose to \u201cdisagree with the notion that any penetration of a vehicle\u2019s perimeter constitutes a penetration of the vehicle itself.\u201d M \u00b6 46. Valencia and Nible, relied upon by the Majority in this case, mirror our previous criticized cases when they \u201cshow [that] the requirement of entry is not difficult to satisfy; the slightest penetration will suffice.\u201d Magness v. Super. Ct., 278 P.3d 259, 263 (Cal. 2012) (construing Valencia and Nible). Magness specifically operates under that boundary but, in Valencia, the defendant damaged the window behind the screen in his attempt to open it. The California Supreme Court in Magness made the \u201cobservation that no burglary would have occurred in Valencia . . . had the defendant removed the window screen but not penetrated into the area behind it[.] Magness, 278 P.3d at 265. Wrapping fingers around the screen\u2019s frame alone may not be sufficient penetration under Magness. On the issue of what constitutes entry, Magness is construction of Valencia. \u201cIn sum, something that is outside must go inside for an entry to occur.\u201d Id. at 264. I am not convinced that Valencia\u2019s and Nible\u2019s path is persuasive.\n{32} The expansion of the nature of structures that could be burgled resulted in our Court\u2019s having \u201cgone astray\u201d from the intent of both the common law and statutory roots of burglary according to our Supreme Court. We were thus criticized for creating a crime that enhanced \u201cany crime committed in any type of structure or vehicle, as opposed to . . . punishment for a harmful entry.\u201d Muqqddin, 2012-NMSC-029, \u00b6 3. We might do well to follow the Iowa Supreme Court, which restrained itself from enlarging the inclusion of curtilage, including front stoops and driveways into the definition of \u201coccupied structure\u201d because the legislature had not previously done so, stating: \u201cWe do not construe statutes so as to render a part of it superfluous, but presume our legislature included every part of the statute for a purpose and intended each part to be given effect.\u201d State v. Pace, 602 N.W.2d 764, 771 (Iowa 1999). Iowa sets a better example for us than California. The facts should fit the law. The law should not move to encompass the facts. From the progression through our vehicular burglary cases, I conclude that \u201centry\u201d is not penetration of a perimeter to the slightest degree, and we should avoid expanding the protected area of a structure\u2019s interior in the absence of legislative direction.\nThe Fact That Defendant\u2019s Conduct Is Adequately Proscribed By Other Statutes Should Also Require Our Forebearance\n{33} Muqqddin also cautions us against blurring the line between similar, but different, offenses with such expansions. 2012-NMSC-029, \u00b6 50. It pointed out that the act of perforating a gas tank for its contents was more likely the misdemeanor of tampering with a motor vehicle. Id. \u00b6 51.\n{34} Burglary traditionally entailed a home invasion, and the crime has evolved to \u201cprotect occupants against the terror and violence that can occur as a result of such an entry.\u201d Id. \u00b6 3. The privacy interest protected by burglary statutes is related to the terror of having an intruder inside of one\u2019s home, into which the entry is fully accomplished. This Opinion recognizes this privacy interest and that Stamper\u2019s reaction to Defendant\u2019s actions is squarely within these senses of invasion, terror, and concern for possible personal violence that the burglary statute is designed to address. It is there the degree of \u201centry\u201d falls short. [Op. \u00b6\u00b6 3,10]. Certainly, Defendant attempted an entry. But, the California Supreme Court stated, more specifically, \u201c[t]he laws are primarily designed, then, not to deter the trespass and the intended crime, which are prohibited by other laws, so much as to forestall the germination of a situation dangerous to personal safety.\u201d Magness, 278 P.3d at 261 (internal quotation marks and citation omitted). This case falls short of that standard. Breaking and entering differs from burglary because it protects a lesser interest than burglary, characterized by its inclusion in Article 14 of Chapter 30 of our statutes entitled \u201cTrespass.\u201d Muqqddin counsels us to have a disinclination to expand a statute when others are adequate to the purpose at hand. 2012-NMSC-029, \u00b6 40 (distinguishing burglary as protecting rights that exist beyond \u201cother laws\u201d intended to deter trespass and theft). Attempt is the taking an act in furtherance of an intention to commit a crime. NMSA 1978, \u00a7 30-28-1 (1963). Defendant did not complete the act of entry and, given his likely intent and location of his crime, it is attempted burglary, not breaking and entering, that accounts for what the Majority says protects a heightened interest against \u201cinvasion of privacy\u201d and security to justify their new boundary. [Op. \u00b6 10], If the Majority follows the conservative approach given us by Muqqddin, then Defendant here should be criminally responsible for attempted residential burglary or, perhaps, attempted breaking and entering, criminal trespass, and criminal damage. The distinction is notable, and the existing criminal statutes are fully adequate as written.\nDefining New Ambiguous Structures Damages the Plain Meaning of \u201cEntry\u201d\n{35} The Majority concedes that the \u201cany part of\u2019 a structure language in the breaking and entering statute applies to the \u201cbreaking\u201d portion of the statute and not the \u201centry.\u201d [Op. \u00b6 9]. The Opinion seems desirous of now extending \u201centry\u201d to any penetration of \u201csome sort of enclosure.\u201d [Op. \u00b6 11]. To do so successfully requires steps not yet legislated: (1) \u201cstructure\u201d (protected space) must be further defined by its outermost perimeter; and (2) entry must be found either as a breaking of a perimeter, however slight, without clear entry of protected interior space, or an actual crossing of the threshold to be present inside of the structure. In Muqqddin, our Supreme Court rejected judicial approach equating entry into \u201cany portion\u201d of a structure with entry into the structure itself. 2012-NMSC-029, \u00b6 38. Thus, I urge that the Majority\u2019s holding inappropriately expands the protected area to \u201cany portion\u201d rather than the interior of the structure by its holding that breaking the outer perimeter and, no more, constituted \u201centry.\u201d\n{36} Muqqddin also cautions us that the plain meaning rule applies to keep the word \u201centry\u201d free of expansion by expanding those things that might be entered, since the Legislature\u2019s existing statutes work without doing so, and judicial restraint forecloses our meddling in such an instance. Id. \u00b6 38. Our Supreme Court rejected law from other jurisdictions, including Texas, that allow entry to be found when \u201cthe defendant crosses some imaginary plane\u201d and concluded that \u201cthe concept of an imaginary plane is ambiguous, creating more questions than it answers and [is] subject to prosecutorial abuse.\u201d Id. \u00b6\u00b6 46, 47. Our Supreme Court had no problem, however, finding that entry could be accomplished \u201cthrough an open window.\u201d Id. \u00b6 48. The Opinion in this case consequently begs more questions than it answers. Muqqddin criticized including in \u201centry\u201d the acts of passing a hand over a flatbed truck to break the plane of its outer edge and stealing a shutter attached to a house that required no entry, but was within the line between eaves and foundation to therefore \u201cbreak[] the close.\u201d Id. \u00b647. Here, the Opinion concludes that \u201cthe plain language of the breaking and entering statute sheds little light on the Legislature\u2019s intent as to the issue before us[.] . . . [WJhether the space between a window screen and an open window is protected space\u201d under the statute. [Op. \u00b6 9], State v. Kindred, based on Arizona\u2019s statute that includes the plane of a building\u2019s outer perimeter, acknowledged that their statute \u201cdiffers in several ways from the common law[.]\u201d 307 P.3d 1038, 1041 (Ariz. Ct. App. 2013). The Kindred Court also commented that it had found \u201cno authority . . . expressly discussing whether that threshold has any particular depth and... whether entry into the threshold, without more, constitutes entry into the structure.\u201d Id. The Arizona legislature made the threshold a plane and required no further entry than crossing it.\n{37} Our Legislature is as apt as any in Texas and Arizona to expand what our Supreme Court counsels us should be left to them alone. In an example from Magness of how parsing \u201centry\u201d can beggar judicial interpretation, an intruder who approached and opened an unlocked sliding glass door on a house\u2019s patio would displace air inside, but unless a part of him or something he carried \u201ccrossed the door\u2019s threshold,\u201d no burglary would occur. 278 P.3d at 264. He could be \u201ccharged with attempted burglary, but not with a completed burglary.\u201d Id. The case was silent about the effect if the door handle were within the oixter perimeter of the door frame, or a finger was inside the outer edge of the door, but not inside the full width of the threshold. Such parsing is best not reserved by courts. 2012-NMSC-029, \u00b6 47. Because Defendant did not enter Stamper\u2019s house, he is, depending on what might be proven of his intent, guilty of no more than an attempt to commit either breaking and entering or burglary, along with the other crimes he most certainly committed, involving trespass or vandalism.\nThe Case Law Does Not Follow Valencia and Nible\n{38} I also conclude that Muqqddin's citation to Valencia and Nible was for, as it stated, no more than pointing out that a structure\u2019s composition relates to an expectation of privacy. Nowhere did Muqqddin attempt to expand that space using these cases, and the remainder of the Supreme Court\u2019s discussion, I believe, favors my view. The Majority places reliance on Valencia, in which the California Supreme Court concluded that, because a window screen is part of the outer boundary of a building, the area behind the window screen is inside the premises, and entry that is just barely inside the premises is sufficient. Valencia has been cited only three times by other states \u2014 Colorado, Hawaii, and Nevada \u2014 none of which utilize its holding expanding boundaries to outside perimeters. Colorado used Valencia in People v. Gonyea, where the defendant reached through the broken window to open a door. In Hawaii, where no statutory definition of \u201centry\u201d existed, the Supreme Court vacated a conviction for the lack of its definition in a jury instruction. Valencia was mentioned only in the context of whether a stream of mace an angry father sprayed into a car over the threshold of the car\u2019s window constituted a felonious \u201centry.\u201d In Nevada, Valencia was mentioned by way of evaluating probable cause for a charge based on circumstantial evidence. Jones v. State, 238 P.3d 827 (Nev. 2008). The older Nible case has been mentioned in other states for other propositions than entry past the outermost perimeter. In Colorado, mentioned above, and Ohio, where the boundary issue was mentioned, there was actual insertion of the defendant\u2019s arm through a window. State v. McIntosh, 549 N.E.2d 1191 (Ohio 1990). Burke, from Massachusetts, is squarely with Valencia. Other cases are not nearly as supportive.\n{39} Chappell, cited by the Majority, involved the defendant reaching through the screen to raise the window inside. [Op. \u00b6 15] Kindred depends on Arizona\u2019s specific statute and found no other authority for the boundary it supported. The Majority, citing two of the cases footnoted in Valencia, is also unavailing. Barrick stated that the defendant rattling doors was no entry, but that he would have been guilty of attempted burglary if Indiana had such a statute. 119 N.E.2d at 553. Gatewood actually held that the defendant\u2019s full entry into an enclosed porch attached to the house and the space between the screen door and the inner door were both a sufficient entry into the dwelling proper. 221 P.2d at 394.\n{40} Many other states have not expanded boundaries outward. Iowa and Hawaii, mentioned above, declined to undertake a judicial expansion of their statute. Most states seem to depend on crossing a \u201cthreshold\u201d to find entry. Charles E. Torcia, Wharton's Criminal Law \u00a7 322 (15th ed. 2014) (\u201cThere is an entry when any part of the defendant\u2019s person passes the line of the threshold.\u201d). Many states have determined that passing the \u201cline of the threshold\u201d with all or part of the body into the interior perimeter of the structure is entry by the defendant. See State v. Liberty, 280 A.2d 805, 808 (Me. 1971) (requiring \u201cintrusion into the building of any part of the body\u201d); Price v. Commonwealth, 112 S.W. 855, 855 (Ky. Ct. App. 1908) (holding that breaking without entry, however slight, is not burglary); State v. Peterson, 881 P.2d 965, 969 (Utah Ct. App. 1994) (\u201cA simple passage by any part of the body over the door\u2019s threshold can amount to entry[.]\u201d). Intrusion into the building is required in New Jersey, Missouri, Florida, Louisiana, Illinois, Alabama, and North Carolina. See State v. O'Leary, 107 A.2d 13, 15 (N.J. Super. Ct. 1954); State v. Pigques, 310 S.W.2d 942, 945 (Mo. 1958) (\u201cLiterally, \u2018entry\u2019 is the act of going into the place after a breach has been effected[.]\u201d); Miller v. State, 187 So. 2d 51, 53 (Fla. Dist. Ct. App. 1966); State v. Conner, 2008-0473 (La. App. 4 Cir. 10/1/08); 996 So. 2d 564, 568 (holding that \u201centry\u201d requires passing the line of the threshold and \u201cintrud[ing], even momentarily, into the structure\u201d); People v. Davis, 279 N.E.2d 179, 181 (Ill. App. Ct. 1972) (requiring \u201cintru[sion] into the building\u201d); State v. McCall, 4 Ala. 643 (Ala. 1843) (holding that reaching through shutters but not the window within was not \u201centry\u201d); State v. Watkins, 720 S.E.2d 844, 850 (N.C. Ct. App. 2012) (holding that no entry inside residence when only instrument that broke window crossed threshold to be \u201cinside the residence\u201d).\nCONCLUSION\n{41} I conclude that Defendant\u2019s actions did not sufficiently \u201center\u201d Stamper\u2019s house for purposes of breaking and entering. I believe that his conduct is adequately covered by other statutes and that the cause of justice would not suffer if he were convicted of the proper crime(s). Breaking and entering and attempted residential burglary are fourth-degree felonies; the legislated punishment is the same for both. Attempted breaking and entering together with criminal trespass and criminal damage to the screen would be an adequate combination to accurately punish him. When facts fit snugly within existing statutes, bending another statute to fit stretches the law\u2019s reach past its legislative intent. Muqqddin, 2012-NMSC-029. \u00b6\u00b6 50-51.\n{42} I would prefer that this Court decline to expand the extent of protected spaces. The Majority concludes early on that the language of the statute does little to help us divine legislative intent regarding whether the space between the screen and window is prohibited space. [Op. \u00b69]. The Opinion recognizes that our statute does not state that entry into \u201cany part of a structure will suffice.\u201d {Id.] There is no \u201cplain meaning\u201d in our statute to define the space protected from \u201centry\u201d and that ambiguity requires our exercising the rule of lenity to Defendant\u2019s benefit in this case. Our previous attempts to expand the reach of protected space have been criticized. Granted, California and Massachusetts in Valencia and Burke have held in accord with where this Opinion takes us. Kindred is based upon the Arizona statute already distinguished from ours, but bases the crime on intruding into a boundary, as opposed to a structure, which I would regard as just the position we took in Rodriguez that was rejected by our Supreme Court in Muqqddin. Other out of state cases cited by the Majority are not so illuminating. I would prefer, in light of Muqqddin, to wait for it to come from somewhere else.\n{43} I therefore most respectfully dissent.\nRODERICK T. KENNEDY, Judge\nReynolds, 1990-NMCA-122, \u00b6 37 (noting that any penetration of the interior space, however slight, is sufficient to constitute \u201centry\u201d within the meaning of the burglary statute); State v. Tixier, 1976-NMCA-054, \u00b6 11, 89 N.M. 297, 551 P.2d 987 (holding that evidence that an unidentified instrument penetrated one-half inch inside a building is enough to effectuate an entry under the burglary statute).\nIn subsequent cases in California, even this has been expanded to support a conviction in which a screen was cut from its frame without any further entry. People v. Hedgecock, D065977, 2015 WL 570299, at **2-3 (Cal. Ct. App. 2015) (unreported case).\nValencia itself frequently conflated breaking with entering in its review of precedent. Many cases cited in Valencia, as supporting the view that penetration of a screen without entering the window behind it are not particularly apposite, since the defendants in Bowers, Gatewood, Jenkins, and Conners involved actual entry by the defendant of the inside of the structure. Ortega and Woods relied on Texas\u2019s \u201cany portion\u201d statute. Crease was on point, while Mazer inferred intent from cutting a screen, but entry was not mentioned.\n195 P.3d 1171, 1174 (Colo. App. 2008).\nState v. Faria, 60 P.3d 333, 340 (Haw. 2002).\nSection 30-14-8(B) (stating that breaking and entering is a fourth-degree felony); \u00a7 30-16-3(A) (stating that burglary of a dwelling is a third-degree felony); \u00a7 30-28-1(C) (attempting to commit a third-degree felony is a fourth-degree felony).", "type": "dissent", "author": "KENNEDY, Judge" } ], "attorneys": [ "Hector H. Balderas, Attorney General", "Santa Fe, NM", "Jacqueline R. Medina, Assistant Attorney General", "Albuquerque, NM", "for Appellee", "Jorge A. Alvarado, Chief Public Defender", "Karl Erich Martell, Assistant Appellate Defender", "Santa Fe, NM", "for Appellant" ], "corrections": "", "head_matter": "Certiorari Granted, June 19, 2015,\nNo. 35,298\nIN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2015-NMCA-073\nFiling Date: April 27, 2015\nDocket No. 33,090\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. ANTHONY HOLT, Defendant-Appellant.\nHector H. Balderas, Attorney General\nSanta Fe, NM\nJacqueline R. Medina, Assistant Attorney General\nAlbuquerque, NM\nfor Appellee\nJorge A. Alvarado, Chief Public Defender\nKarl Erich Martell, Assistant Appellate Defender\nSanta Fe, NM\nfor Appellant" }, "file_name": "0200-01", "first_page_order": 216, "last_page_order": 231 }