{ "id": 12168317, "name": "STATE OF NEW MEXICO, Plaintiff-Appellee, v. ARTHUR J. MESTAS, Defendant-Appellant", "name_abbreviation": "State v. Mestas", "decision_date": "2016-02-11", "docket_number": "Docket No. 33,350", "first_page": "669", "last_page": "678", "citations": [ { "type": "official", "cite": "2016-NMCA-047" } ], "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": "112 N.M. 654", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720198 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/112/0654-01" ] }, { "cite": "1991-NMCA-069", "category": "reporters:neutral", "reporter": "NMCA", "pin_cites": [ { "page": "\u00b6 12" } ], "opinion_index": 0 }, { "cite": "352 P.3d 702", "category": "reporters:state_regional", "reporter": "P.3d", "year": 2015, "opinion_index": 0 }, { "cite": "2015-NMCA-073", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4362477 ], "weight": 6, "year": 2015, "pin_cites": [ { "page": "\u00b6 22" }, { "page": "\u00b6 27" }, { "page": "\u00b6\u00b6 27, 29" }, { "page": "\u00b6 22" }, { "page": "\u00b6\u00b6 29, 34" } ], "opinion_index": 0, "case_paths": [ "/nm-app/8/0200-01" ] }, { "cite": "119 N.M. 788", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561306 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/119/0788-01" ] }, { "cite": "1995-NMCA-028", "category": "reporters:neutral", "reporter": "NMCA", "weight": 2, "pin_cites": [ { "page": "\u00b6 11" } ], "opinion_index": 0 }, { "cite": "101 N.M. 192", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586399 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/101/0192-01" ] }, { "cite": "1984-NMCA-034", "category": "reporters:neutral", "reporter": "NMCA", "opinion_index": 0 }, { "cite": "699 P.2d 890", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10417417 ], "year": 1985, "pin_cites": [ { "page": "893" } ], "opinion_index": 0, "case_paths": [ "/p2d/699/0890-01" ] }, { "cite": "2010-NMCA-069", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4247801 ], "weight": 3, "pin_cites": [ { "page": "\u00b6\u00b6 5-6, 8, 11" } ], "opinion_index": 0, "case_paths": [ "/nm/148/0845-01" ] }, { "cite": "2002-NMCA-109", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 15587 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/133/0032-01" ] }, { "cite": "350 P.3d 091", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2015-NMCERT-001", "category": "reporters:neutral", "reporter": "NMCERT", "opinion_index": 0 }, { "cite": "346 P.3d 390", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2015-NMCA-037", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4241324 ], "weight": 4, "pin_cites": [ { "page": "\u00b6 6" }, { "page": "\u00b6 14" }, { "page": "\u00b6 3" }, { "page": "\u00b6 20" } ], "opinion_index": 0, "case_paths": [ "/nm-app/7/0538-01" ] }, { "cite": "2012-NMSC-009", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4187640 ], "pin_cites": [ { "page": "\u00b6 1" } ], "opinion_index": 0, "case_paths": [ "/nm-app/1/0555-01" ] }, { "cite": "105 N.M. 619", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1599073 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/105/0619-01" ] }, { "cite": "1987-NMCA-035", "category": "reporters:neutral", "reporter": "NMCA", "weight": 8, "pin_cites": [ { "page": "\u00b6 2" }, { "page": "\u00b6 3" }, { "page": "\u00b6 4" }, { "page": "\u00b6 4" }, { "page": "\u00b6\u00b6 5-8" }, { "page": "\u00b6 6" }, { "page": "\u00b6\u00b6 15-16" } ], "opinion_index": 0 }, { "cite": "2008-NMSC-053", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 4001913 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 10" } ], "opinion_index": 0, "case_paths": [ "/nm/144/0821-01" ] }, { "cite": "334 P.3d 425", "category": "reporters:state_regional", "reporter": "P.3d", "year": 2015, "opinion_index": 0 }, { "cite": "2014-NMCERT-008", "category": "reporters:neutral", "reporter": "NMCERT", "year": 2015, "opinion_index": 0 }, { "cite": "331 P.3d 971", "category": "reporters:state_regional", "reporter": "P.3d", "opinion_index": 0 }, { "cite": "2014-NMCA-087", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 4240551 ], "weight": 5, "pin_cites": [ { "page": "\u00b6 5" }, { "page": "\u00b6 11" }, { "page": "\u00b6 3" }, { "page": "\u00b6 11" } ], "opinion_index": 0, "case_paths": [ "/nm-app/6/0498-01" ] }, { "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": 20, "pin_cites": [ { "page": "\u00b6 48" }, { "page": "\u00b6 1" }, { "page": "\u00b6 59" }, { "page": "\u00b6 33" }, { "page": "\u00b6\u00b6 19-21, 33-34" }, { "page": "\u00b6 1" }, { "page": "\u00b6 38" }, { "page": "\u00b6\u00b6 38-39" }, { "page": "\u00b6 49" }, { "page": "\u00b6 45" }, { "page": "\u00b6 59" }, { "page": "\u00b6 37" }, { "page": "\u00b6 44" }, { "page": "\u00b6 45" }, { "page": "\u00b6 45" }, { "page": "\u00b6 45" }, { "page": "\u00b6 45" }, { "page": "\u00b6 18" }, { "page": "\u00b6 42" } ], "opinion_index": 0, "case_paths": [ "/nm-app/2/0433-01" ] } ], "analysis": { "cardinality": 1159, "char_count": 28917, "ocr_confidence": 0.788, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.24684798225688062 }, "sha256": "cd7e12f7ca13fe284762eff85568a7245c86edfadc941fe6c85690209be656a1", "simhash": "1:d9f5f29ae7cf1006", "word_count": 4557 }, "last_updated": "2023-07-14T22:30:56.942854+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "J. MILES HANISEE, Judge", "RODERICK T. KENNEDY, Judge", "M. MONICA ZAMORA, Judge" ], "parties": [ "STATE OF NEW MEXICO, Plaintiff-Appellee, v. ARTHUR J. MESTAS, Defendant-Appellant" ], "opinions": [ { "text": "OPINION\nHANISEE, Judge.\n{1} Defendant appeals from the district court\u2019s judgment of conviction for burglary and conspiracy to commit burglary after a jury found him guilty of those offenses. The issues Defendant raises require us to again evaluate our burglary jurisprudence in light of State v. Office of Public Defender ex rel. Muqqddin, 2012-NMSC-029, 285 P.3d 622. We do so, and affirm.\nI. BACKGROUND\n{2} On October 1, 2012, Edward Fisher was working as a desk clerk and night monitor at the Motel 6 in Roswell. Mr. Fisher\u2019s desk was behind a chest-high counter that separated his office from a lobby open to motel guests and the public. Next to the counter was a locked door that allowed Mr. Fisher and other motel employees to enter and return from the lobby area. A mechanized \u201cshutter\u201d or \u201cshield\u201d was built into a recess in the ceiling above the counter, allowing employees to completely enclose the desk area (thereby preventing any access from the lobby) by pressing a button behind the counter. The desk behind the counter contained a lockable cash drawer.\n{3} At about 2:20 a.m., Defendant walked into the motel lobby. Defendant asked Mr. Fisher to reset the motel\u2019s wireless internet router; although the testimony is unclear on this point, it seems that Defendant told Mr. Fisher that his wife was having trouble accessing the internet using the motel\u2019s wireless network. Mr. Fisher thought Defendant was a motel guest, but in fact Defendant was a former employee of the motel.\n{4} Mr. Fisher agreed to reset the router. This required Mr. Fisher to leave his desk, take an elevator to the second floor, unplug the router, wait for thirty seconds, plug the router back in, wait for another thirty seconds to confirm that the router was working, and then return to the ground floor on the elevator. Before he left, Mr. Fisher locked the door separating his desk area from the lobby and the desk drawer containing cash. However, Mr. Fisher did not activate the barrier above the counter.\n{5} After Mr. Fisher left his desk, another man entered the lobby. Video evidence offered by the State and viewed by the jury shows the man putting his hands on the counter and lifting his knees onto an overhang just below the counter top. The man further ascended the counter so that his thighs rested on its top; this put the man\u2019s arms and torso inside the clerk\u2019s room. The man jimmied the lock on the cash drawer and took about $250. The man then closed the drawer, dismounted from the counter, and left the lobby. Defendant followed the man out of the lobby and can be seen walking away from the motel in the same direction as the man who committed the theft. The clerk testified that when he returned to his desk, \u201cit took me a minute to realize we\u2019d been robbed, because they\u2019d closed the drawer again, and the lock had been forced open, instead of turned, so it looked like nothing had been touched.\u201d\n{6} Defendant was tried in the district court on charges of non-residential burglary in violation ofNMSA 1978, Section 30-16-3(B) (1971) and conspiracy to commit burglary in violation of NMSA 1978, Section 30-28-2 (1979). At the close of the State\u2019s evidence at trial, Defendant moved for a directed verdict on the burglary and conspiracy charges. The district court denied the motion, stating that a rational jury could infer that the clerk\u2019s desk was inside a non-public area that was closed off from the lobby by a locked door. Although the district court noted the fact that Mr. Fisher had not closed the retractable barrier over the counter to prevent access to the desk area altogether, it concluded the open space above the counter was \u201cakin to an open window,\u201d and that therefore the non-public clerk\u2019s area behind the counter could be burglarized. See Muqqddin, 2012-NMSC-029, \u00b6 48 (stating that \u201ca burglary can be committed through an open window\u201d). The jury convicted Defendant of both counts.\nII. STANDARD OF REVIEW\n{7} In separate points of appeal asserting error in the denial of his motion for a directed verdict, Defendant challenges the sufficiency of the evidence as to his conviction for burglary and his conviction for conspiracy to commit burglary. Regarding his burglary conviction under Section 30-16-3(B), Defendant presents a question of statutory construction that we divide into two sub-issues: (1) whether entry into the clerk\u2019s office adjacent to and accessible from a public lobby constitutes an \u201cunauthorized entry\u201d; and (2) whether the clerk\u2019s office is a \u201cstructure\u201d that may be burglarized.\n{8} In considering Defendant\u2019s argumentthat his conduct is outside the scope of that described to be burglary by Section 30-16-3, we review the district court\u2019s denial of Defendant\u2019s motion for a directed verdict de novo. See State v. Baca, 2014-NMCA-087, \u00b6 5, 331 P.3d 971 (\u201cStatutory construction is a question of law which we review de novo.\u201d), cert. granted, 2014-NMCERT-008, 334 P.3d 425, cert. quashed, 2015-NMCERT-_,_ P.3d __ (May 11, 2015). As to Defendant\u2019s challenge to the sufficiency of the evidence underlying his conspiracy conviction, we review the record to determine whether\nsufficient evidence was adduced to support the underlying charge. The test for sufficiency of the evidence is whether substantial evidence of either a direct or circumstantial nature exists to support a verdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction. When considering the sufficiency of the evidence, this Court does not evaluate the evidence to determine whether some hypothesis could be designed which is consistent with a finding of innocence. Instead, we view the evidence as a whole and indulge all reasonable inferences in favor of the jury\u2019s verdict while at the same time asking whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt[.]\nState v. Sena, 2008-NMSC-053, \u00b6 10, 144 N.M. 821, 192 P.3d 1198 (alteration, internal quotation marks, and citations omitted).\nIII. DISCUSSION\nA. The Conduct at Issue Amounted to a \u201cBurglary\u201d as Defined in Section 30-16-3\n{9} In State v. Sanchez, 1987-NMCA-035, 105 N.M. 619, 735 P.2d 536, this Court upheld two burglary convictions for entering a private area within a structure open to the public with the intent to commit theft or another felony. Judge Apodaca penned a special concurrence, worrying that this Court\u2019s jurisprudence was \u201cstepping too far afield\u201d from the conduct our state\u2019s burglary statute intended to proscribe. Id. \u00b6 13 (Apodaca, J., specially concurring). That concern proved prophetic. In Muqqddin, our Supreme Court called into question forty years of the Court of Appeals\u2019 burglary decisions. See 2012-NMSC-009, \u00b6 1; State v. Archuleta, 2015-NMCA-037, \u00b6 6, 346 P.3d 390, cert. granted, 2015-NMCERT-001, 350 P.3d 091, cert. quashed, 2015-NMCERT-_,_ P.3d_ (May 11,2015). Our Supreme Court criticized this Court\u2019s \u201cissu[ance of] numerous opinions that, for the most part, . . . expanded significantly the reach of the burglary statute ... without any parallel change in the statute.\u201d Muqqddin, 2012-NMSC-029, \u00b6 1.\n{10} We interpret Muqqddin to require us to reevaluate our burglary precedent. See, e.g., Baca, 2014-NMCA-087, \u00b6 11 (\u201c[Fjollowing Muqqddin, we question the continuing validity of general statements in [State v.] Tower[, 2002-NMCA-109, 133 N.M. 32, 59 P.3d 1264, overruled by Archuleta, 2015-NMCA-037, \u00b6 14] indicating that a retail store\u2019s notice revoking a person\u2019s permission to enter on the premises is sufficient by itself to make his or her presence [in the store] unauthorized under our burglary statute.\u201d). As we explain below, Muqqddin repudiated much of the analysis this Court employed to decide Sanchez. The question presented by this appeal is not whether Sanchez remains good law; we think Muqqddin has all but abrogated that decision. Rather, the question is whether, on a set of facts quite analogous to those in Sanchez, Muqqddin requires us to reverse Defendant\u2019s conviction in this case. We think not.\n{11} Since Defendant was convicted as a co-conspirator and accomplice (i.e., the unknown man, and not Defendant, scaled the counter, accessed the locked drawer, and removed the motel\u2019s cash), he challenges his conviction for burglary and conspiracy to commit burglary by contending that his accomplice\u2019s conduct falls outside the scope of the burglary statute for two reasons: (1) there is no evidence that his accomplice committed an \u201cunauthorized entry\u201d because the Motel 6 lobby area was open to the public; and (2) the clerk\u2019s area adjacent to the motel lobby is not a \u201cstructure\u201d that may be burglarized. We address each assertion in turn, and discuss Defendant\u2019s contention that he is not responsible for the unknown man\u2019s actions in conjunction with his sufficiency challenge to his conviction for conspiracy to commit burglary.\n1. Defendant\u2019s Accomplice Committed an Unauthorized Entry When He Reached into a Private Area Separated From the Motel\u2019s Public Lobby\n{12} New Mexico\u2019s burglary statute reads: \u201cBurglary consists of the unauthorized entry of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, with the intent to commit any felony or theft therein.\u201d Section 30-16-3. Burglary of a \u201cdwelling house\u201d is a third-degree felony. Section 30-16-3(A). All other burglaries are fourth-degree felonies. Section 30-16-3(B).\n{13} To determine the applicability of the burglary statute to the evidence of Defendant\u2019s conduct adduced at trial, we must first consider whether the \u201centry\u201d Defendant committed is \u201cunauthorized.\u201d See Section 30-16-3(A). In other words, we ask whether the entry described by the evidence at trial \u201cis the type of entry the Legislature intended Section 30-16-3 to deter.\u201d Muqqddin, 2012-NMSC-029, \u00b6 59. A given entry is \u201cunauthorized\u201d if it violates or potentially violates the possessory rights (particularly the right to exclude) and privacy interests of a protected structure\u2019s rightful occupant. Id. \u00b6\u00b6 41-43, 60.\n{14} It is helpful to understand Muqqddin as drawing a distinction between the sorts of conduct that qualify as burglary\u2014unauthorized entries\u2014and the places that may be burglarized\u2014dwellings, vehicles, watercrafts, aircrafts, or \u201cother structure[s], movable or immovable.\u201d Section 30-16-3(B). As to conduct, our Supreme Court held that by removing distinctions based on the time the offense conduct occurred, the Legislature did not intend to drastically expand the scope of existing burglary statutes, but rather to \u201ccombin[e] several statutes that were firmly rooted in the common law.\u201d Muqqddin, 2012-NMSC-029, \u00b6 33. Thus, Section 30-16-3 was the Legislature\u2019s effort to condense separate codifications of the common law into a single, simplified section of the larceny subchapter of our criminal code. Muqqddin, 2012-NMSC-029, \u00b6\u00b6 19-21, 33-34. The term \u201cunauthorized entry\u201d dispensed with anachronistic elements that are difficult to apply, such as whether the offense conduct occurred at night or whether or not a particular entry involved a \u201cbreaking,\u201d id. \u00b6\u00b6 17-18, while at the same time preserving the \u201centry\u201d element so as to preserve the common law understanding of burglary as an offense against \u201cthe security of habitation or a similar space[.]\u201d Id. \u00b6 39.\n{15} Muqqddin attempts to reconcile the Legislature\u2019s preservation ofthe common law understanding of the sort of conduct that constitutes burglary with the Legislature\u2019s indisputable intent to expand of the set of locations that may be burglarized to include all \u201cother structures, movable or immovable.\u201d Id. \u00b6\u00b6 27, 34. The solution was to admonish lower courts to employ traditional tools of statutory construction and the rule of lenity to ensure that our burglary statute does not become an automatic \u201cenhancement for any crime committed in any type of structure or vehicle, as opposed to a punishment for a harmful entry.\u201d Id. \u00b6 3.\n{16} In Muqqddin, our Supreme Court evaluated this Court\u2019s expansive application ofthe term \u201cvehicle\u201d under Section 30-16-3 to prohibit the Defendant\u2019s piercing of the gas tank beneath a van with the intent to siphon gas. See State v. Muqqddin, 2010-NMCA-069, \u00b6\u00b6 5-6, 8, 11, 148 N.M. 845, 242 P.3d 412, rev\u2019d by 2012-NMSC-029, \u00b6 1. Our Supreme Court rejected our perspective, which would have allowed the state to obtain burglary convictions for acts that did not implicate the security of habitation that the common law offense of burglary was intended to protect. Muqqddin, 2012-NMSC-029, \u00b6 38. In other words, our reading of the word \u201cvehicle\u201d to include everything within the exterior perimeter of the vehicle as a whole (including objects which could not be occupied by humans, such as the gas tank) expanded the scope of the phrase \u201cunauthorized entry\u201d beyond its common law conception. Id. \u00b6\u00b6 38,45 (\u201cProhibited space is private space. It is the nature of the enclosure that creates the expectation of privacy. Enclosure puts the public on notice. . . . The proper question is whether the nature of a structure\u2019s composition is such that a reasonable person would expect some protection from unauthorized intrusions.\u201d (alteration, internal quotation marks, and citation omitted)).\n{17} With this understanding of Muqqddin, we proceed to analyze the offense conduct that gave rise to Defendant\u2019s conviction for violating Section 30-16-3. Defendant argues thatbecause the motel lobby was open to the public, there is no substantial evidence that the unauthorized man entered the motel without authorization, a prerequisite to Defendant\u2019s conviction for burglary. As we noted initially, we were presented with a similar set of facts in Sanchez, in which we consolidated two separate appeals, one involving the \u201cunauthorized entry into the loading dock area of A.P.K. Auto Parts, a retail store, with intent to steal[,]\u201d the other involving the \u201cunauthorized entry into an office in Presbyterian Hospital in Albuquerque[.]\u201d 1987-NMCA-035, \u00b6 2.\n{18} Both defendants in Sanchez raised the same argument that Defendant makes here: entry into a private area wholly contained within a building otherwise open to the public does not constitute an \u201cunauthorized entry\u201d under Section 30-16-3. Sanchez, 1987-NMCA-035, \u00b6 3. The defendants cited an Alaska case, Arabie v. State, 699 P.2d 890, 893 (Alaska Ct. App. 1985), which reversed a defendant\u2019s conviction for burglary for entering a walk-in cooler at the back of a convenience store. See also Sanchez, 1987-NMCA-035, \u00b6 4 (discussing Arabie).\n{19} This Court acknowledged that the facts in Arabie were \u201cquite similar\u201d to the facts underlying the convictions under review in Sanchez. See Sanchez, 1987-NMCA-035, \u00b6 4. But we concluded that Arabie\u2019s reasoning did not control for three reasons: (1) \u201cAlaska\u2019s commitment to bringing statutory burglary close to its common law ancestor[,]\u201d (2) the Alaska court\u2019s \u201c[consideration . . . [of] the likelihood that the type of entry charged would terrorize occupants[,]\u201d and (3) the Alaska burglary statute uses the term \u201cbuilding\u201d for its catchall while the New Mexico burglary statute uses the word \u201cstructure}.]\u201d Sanchez, 1987-NMCA-035, \u00b6\u00b6 5-8.\n{20} Muqqddin repudiates much of the logic underpinning our decision in Sanchez. Compare Sanchez, 1987-NMCA-035, \u00b6 6 (\u201cNew Mexico, unlike Alaska, has demonstrated no legislative intent to restrict the definition of burglary nor to bring that crime closer to its common law root. In New Mexico, the statutory offense of burglary is one against the security of property, and its purpose is to protect possessory rights.\u201d (citing State v. Rodriguez, 1984-NMCA-034, 101 N.M. 192, 679 P.2d 1290)), with Muqqddin, 2012-NMSC-029, \u00b6\u00b6 38-39 (\u201c[W]e reject any further use of Rodriguez as persuasive authority. . . . [T]he original common-law purpose of burglary, the protection of the security of habitation or a similar space, is still relevant when construing our modern burglary statute. . . . [Bjurglary has a greater purpose than merely protecting property.\u201d).\n{21} But Muqqddin cited with approval Judge Apodaca\u2019s special concurrence in Sanchez. See Muqqddin, 2012-NMSC-029, \u00b6 49. And while Judge Apodaca expressed misgivings about the majority\u2019s expansive interpretation of Section 30-16-3, he nonetheless agreed thatboth convictions could be upheld because there was sufficient evidence for the jury to conclude that the defendants burglarized protected spaces, even under a more limited, traditional construction ofthe burglary statute. Sanchez, 1987-NMCA-035, \u00b6\u00b6 15-16 (Apodaca, J., specially concurring).\n{22} We conclude that Defendant\u2019s conduct falls within the scope of the burglary statute, even under the narrower interpretation announced by Muqqddin. Unlike Baca and Archuleta, the \u201cunauthorized\u201d aspect of Defendant\u2019s entry is not a violation of a retail store\u2019s unenforced members-only policy, Baca, 2014-NMCA-087, \u00b6 3, or a piece of paper telling the defendant that he was no longer welcome to enter an area otherwise enjoyed by the public at large, Archuleta, 2015-NMCA-037, \u00b6 3. Here, the \u201cunauthorized entry\u201d at issue is not Defendant\u2019s entry of the motel lobby with intent to commit a theft, but rather his accomplice\u2019s entry into the clerk\u2019s office adjacent to the lobby. The clerk\u2019s office was designed to remain separate from the public lobby area: the only way to enter was through a locked door or over a chest-high counter that could be completely shut with a retractable barrier. This design notified the public that the clerk\u2019s office was accessible only to motel employees. In short, it is reasonable to \u201cexpect some protection from unauthorized intrusions\u201d into the clerk\u2019s atea. Muqqddin, 2012-NMSC-029, \u00b6 45 (internal quotation marks and citation omitted). It follows, then, that climbing the chest-high counter and jimmying open the cash drawer violated the occupant\u2019s reasonable expectation of privacy. Accordingly, the entry was \u201cthe type of entry the Legislature intended Section 30-16-3 to deter.\u201d Muqqddin, 2012-NMSC-029, \u00b6 59.\n2. The Clerk\u2019s Area is an \u201cOther Structure\u201d Under Section 30-16-3.\n{23} Defendant argues that even if his accomplice\u2019s entry into the clerk\u2019s office was unauthorized, the space falls within the ambit of Muqqddin\u2019s holding that Section 30-16-3 does not protect component parts of the list of enumerated structures that are protected from burglary. See Muqqddin, 2012-NMSC-029, \u00b6 37. Put differently, Defendant argues that even if the motel as a whole is a structure that can be burglarized, Muqqddin precludes a burglary conviction for an unauthorized entry into a component part of a larger, protected structure.\n{24} This argument reads too much into Muqqddin. Defendant\u2019s interpretation of Muqqddin would essentially render Section 30-16-3 superfluous: every \u201cwhole\u201d is composed of parts; were we to accept Defendant\u2019s argument, every entry without authorization into an interior space contained within a location protected by Section 30-16-3 (such as the passenger compartment of a vehicle) with intent to commit a felony would not constitute burglary. Rather, Muqqddin qualified Section 30-16-3 so that liability does not stem from whether a structure can be characterized as a \u201cpart\u201d of a greater whole, but rather whether the structure is \u201csome sort of enclosure.\u201d Muqqddin, 2012-NMSC-029, \u00b6 44 (citing State v. Foulenfont, 1995-NMCA-028, 119 N.M. 788, 895 P.2d 1329). And in order for something to have some sort of enclosure, it must be \u201ccapable of completely confining people and their property.\u201d Foulenfont, 1995-NMCA-028, \u00b6 11.\n{25} Here, the clerk\u2019s office was capable of completely confining the motel clerk, his desk, and the locked drawer containing cash: a locked door prevented access from the lobby, and the opening above the chest-high counter could be closed and secured. In short, the enclosure\u2019s physical characteristics were such \u201cthat a reasonable person would expect some protection from unauthorized intrusions.\u201d Muqqddin, 2012-NMSC-029, \u00b6 45 (internal quotation marks and citation omitted).\n{26} In State v. Holt, 2015-NMCA-073, 352 P.3d 702, cert. granted, 2015-NMCERT-__ (No. 35,298, June 19, 2015), we held that the space between a window screen and a closed window on a home was a protected space under Muqqddin. Holt, 2015-NMCA-037, \u00b6 20 (citing Muqqddim, 2012-NMSC-029, \u00b6 45). We reasoned that a window screen was \u201ca real, non-imaginary device [that] provided protection against intrusion and enclosed protected space.\u201d Holt, 2015-NMCA-073, \u00b6 22 (citing Muqqddin, 2012-NMSC-029, \u00b6 45). In a dissent, Judge Kennedy characterized the majority\u2019s holding as \u201cexpanding the boundary of [prohibited] spacefs]... in a way [Muqqddin\\ took pains to criticize.\u201d Holt, 2015-NMCA-073, \u00b6 27 (Kennedy, J., dissenting). Judge Kennedy was concerned that the majority had revived a statutory interpretation that gave rise to burglary liability for even the slightest intrusion into the \u201coutermost plane of [a] structure,\u201d an approach Muqqddin rejected. Holt, 2015-NMCA-073, \u00b6\u00b6 27, 29 (Kennedy, J., dissenting).\n{27} We hold that the clerk\u2019s office is a protected space under the burglary statute. The crucial question in determining whether an area is protected is whether or not its physical characteristics create an \u201c[enclosure [that] puts the public on notice.\u201d Muqqddin, 2012-NMSC-029, \u00b6 45; see Holt, 2015-NMCA-073, \u00b6 22. The chest-high counter separating the public hotel lobby from the otherwise sealed-off clerk\u2019s area was sufficient to create such an enclosure and put the public on notice that it was off-limits. To be sure, had Defendant merely placed his hand on the counter while intending to commit a felony inside the clerk\u2019s area, Judge Kennedy\u2019s dissent might require us to reverse Defendant\u2019s conviction. But this case does not involve a \u201cpenetration of mere outer perimeters.\u201d Holt, 2015-NMCA-073, \u00b6\u00b6 29, 34 (Kennedy, J., dissenting).\n{28} The fact that the clerk did not close the barrier above the countertop does not alter the outcome of this case. As our Supreme Court noted in Muqqddin, the Legislature rejected \u201coddities\u201d in the common law requiring courts to determine whether a property owner had \u201cinvitefd]\u201d the burglary. See Muqqddin, 2012-NMSC-029, \u00b6 18 (internal quotation marks and citation omitted). In Muqqddin, the defendant\u2019s burglary conviction is not based on \u201chappenstance\u201d distinctions based on the way he accessed the clerk\u2019s office; any unauthorized entry into the separate and nonpublic clerk\u2019s area with intent to commit a theft or other felony would constitute a burglary. Id. \u00b6 56. Indeed, the Muqqddin court expressly noted that its holding would not bar pro secution for the unauthorized entry through \u201csuch things as an open window. A window, by its nature, creates an opening in an enclosure[.]\u201d Id. \u00b6 48. Thus, the question is whether the structure as a whole is protected, not the manner by which a person accesses it without authorization.\n{29} We acknowledge that in Baca, we \u201cquestioned] the continuing validity of other burglary cases decided before Muqqddin that recognize a distinction between areas of a retail store that are considered open or closed to the public.\u201d 2014-NMCA-087, \u00b6 11. But Baca held out the possibility that \u201careas of retail stores . . . may have privacy or security interests distinct from general shopping areas.\u201d Id. We think the conduct underlying Defendant\u2019s conviction and the physical attributes of the clerk\u2019s area implicates the interests identified in Baca such that we must uphold Defendant\u2019s convictions.\n{30} Defendant\u2019s final argument is that becaus q Muqqddin applied the rule of lenity to resolve the question of whether the \u201cstructure\u201d in Section 30-16-3 applied to a gas tank attached to a van and the wheel well of a car, we must likewise apply the rule of lenity to construe the word \u201cstructure\u201d not to include the motel clerk\u2019s office. But the rule of lenity applies only to \u201csituations in which a reasonable doubt persists about a statute\u2019s intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute.\u201d State v. Edmondson, 1991-NMCA-069, \u00b6 12, 112 N.M. 654, 818 P.2d 855 (internal quotation marks and citation omitted). Here, we do not think that Muqqddin\u2019s interpretation of Section 30-16-3 mandates the application of the rule of lenity to every case involving a structure not specifically enumerated in Section 30-16-3. Rather, the rule of lenity applies when it remains unclear whether Section 30-16-3 prohibits a particular act or protects a given structure.\n{31} As we have explained above, Defendant\u2019s conduct is the sort of \u201cevil that our society is attempting to deter\u201d with the burglary statute: \u201cthe invasion of privacy and the victim\u2019s feeling of being personally violated.\u201d Muqqddin, 2012-NMSC-029, \u00b6 42. Defendant\u2019s entry into the separate, secured clerk\u2019s office is a harmful entry that is readily distinguishable from petty theft or shoplifting because a reasonable person would have understood the clerk\u2019s office to be closed to access by the public. And the motel clerk\u2019s office is an enclosed space, see id. \u00b6 44, that a reasonable person would understand to be protected from outside intrusions. Id. \u00b6 45. Insofar as Sanchez can be read to allow a defendant to be convicted for unauthorized entries that do not implicate a property owner\u2019s privacy interests and right of habitation (i.e., the right to exclude others), there is no dispute that Muqqddin repudiated Sanchez. But we need not apply Sanchez\u2019s expansive definition of the term \u201cunauthorized entry\u201d and \u201cstructure\u201d to uphold Defendant\u2019s burglary conviction in this case.\nB. Sufficient Evidence Was Adduced at Trial for a Rational Jury to Convict Defendant of Conspiracy to Commit Burglary\n{32} Defendant argues that his burglary and conspiracy convictions must be vacated because the evidence at trial showed that an \u201cunidentified second individual crawled over the counter into the area that held the cash box. [Defendant] remained at all times in the public lobby area.\u201d In other words, Defendant argues that even if the unknown man committed a burglary, there is insufficient evidence that Defendant conspired to commit the burglary.\n{33} The district court instructed the jury that in order to convict Defendant of conspiracy, it had to find beyond a reasonable doubt that\n1. [Defendant and another person by words or acts agreed together to commit Burglary;\n2. [Defendant and the other person intended to commit Burglary; [and]\n3. This happened in New Mexico on or about the 1st day of October, 2012.\nSee also UJI 14-2810 (setting out elements of conspiracy).\n{34} The trial record contains substantial evidence from which the jury could infer that Defendant had entered into a conspiratorial agreement with the unidentified male to commit the burglary. First, Defendant created the opportunity for his co-conspirator to commit the crime by asking the motel clerk to reset the internet router. He did so by implying that he was a motel guest, which he was not, and that his wife was experiencing difficulty connecting to the internet using the motel\u2019s wireless network. Second, the surveillance video presented by the State at trial showed the unidentified man entering the motel lobby immediately after the clerk left his office and easily locating the cash drawer behind the desk. Third, once the unidentified man removed the cash from the cash drawer, the surveillance footage showed Defendant hurriedly departing the lobby shortly behind and walking in the same direction away from the motel as the unidentified man. Viewed in a light most favorable to the jury\u2019s verdict, a rational trier of fact could infer from this evidence that Defendant (a former motel employee) knew the location of the cash drawer and the fact that resetting the wireless router would require the clerk to be away from the office for a sufficient amount of time to create an opportunity to steal the cash and escape without notice. Given the timing of the burglary, a rational jury could infer that Defendant and his accomplice agreed and intended to commit the crime of burglary. Accordingly, sufficient evidence supports Defendant\u2019s conviction for conspiracy to commit burglary.\nCONCLUSION\n{35} The district court did not err in denying Defendant\u2019s motion for a directed verdict on his burglary and conspiracy to commit burglary charges. We affirm.\n{36} IT IS SO ORDERED.\nJ. MILES HANISEE, Judge\nWE CONCUR:\nRODERICK T. KENNEDY, Judge\nM. MONICA ZAMORA, Judge", "type": "majority", "author": "HANISEE, Judge." } ], "attorneys": [ "Hector H. Balderas, Attorney General Santa Fe, NM Kenneth H. Stalter, Assistant Attorney General Albuquerque, NM for Appellee", "L. Helen Bennett Albuquerque, NM for Appellant" ], "corrections": "", "head_matter": "IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO\nOpinion Number: 2016-NMCA-047\nFiling Date: February 11, 2016\nDocket No. 33,350\nSTATE OF NEW MEXICO, Plaintiff-Appellee, v. ARTHUR J. MESTAS, Defendant-Appellant\nHector H. Balderas, Attorney General Santa Fe, NM Kenneth H. Stalter, Assistant Attorney General Albuquerque, NM for Appellee\nL. Helen Bennett Albuquerque, NM for Appellant" }, "file_name": "0669-01", "first_page_order": 685, "last_page_order": 694 }