For example, in State v. Sorrelhorse, this Court stated that “the term ‘entry’ in the criminal code requires only the slightest penetration of an interior space.” 2011–NMCA–095, ¶ 7, 150 N.M. 536, 263 P.3d 313. Similarly, in State v. Reynolds, the Court noted that “[a]ny penetration, however slight, of the interior space is sufficient [to constitute entry].”
See § 30-14-8(A) ; see, e.g. , State v. Contreras , 2007-NMCA-119, ¶ 17, 142 N.M. 518, 167 P.3d 966 (explaining that "entering by breaking the window" met the requirements of an unauthorized entry). In State v. Sorrelhorse , 2011-NMCA-095, ¶ 21, 150 N.M. 536, 263 P.3d 313, we held that the offense of criminal damage to property was a lesser included offense of breaking and entering because both offenses require actual property damage. Sorrelhorse indicates that, where entry is obtained by breaking or dismantling physical property, the evident purpose of the breaking and entering statute is to punish unauthorized entry accomplished by physical damage to property.
Seeid. In State v. Sorrelhorse, 2011–NMCA–095, ¶¶ 4, 8, 150 N.M. 536, 263 P.3d 313, the defendant forcibly entered an apartment; however, the entry consisted of nothing more than the defendant's foot going in “a little way.” As noted, our breaking-and-entering statute is intertwined with our burglary statute.
Ortiz continues to be cited favorably, by our courts and others. Baca, 2014-NMCA-087, ¶ 13; State v. Sorrelhorse, 2011-NMCA-095, ¶ 19, 150 N.M. 536, 263 P.3d 313; State v. Brown, 911 N.W.2d 180, 184 (Iowa Ct. App. 2018). {¶21} The State counters that State v. James, a post-Ortiz decision, supports the proposition that a felonious intent may make an otherwise legitimate entry unauthorized.
{¶11} Second, with regard to Defendant's intent, see Ford, 2007-NMCA-052, ¶ 12, based on our review of the record, we are aware of no "significant change in the nature or objective of Defendant's conduct." Statev. Sorrelhorse, 2011-NMCA-095, ¶ 11, 150 N.M 536, 263 P.3d 313 (holding that attempting to force open a doorand beating on a door were unitary conduct because "[the d]efendant's intent was to open the door to the apartment by physical force"). After the altercation between Victim and Defendant, Defendant testified that he was "upset" and began "breaking stuff," before "stuffing the chimney and fireplace."
See § 30-14-8(A); State v. Contreras, 2007-NMCA-119, ¶ 17, 142 N.M. 518, 167 P.3d 966 (explaining that "entering by breaking the window" was an element in a breaking and entering case). In State v. Sorrelhorse, 2011-NMCA-095, ¶ 21, 150 N.M. 536, 263 P.3d 313, we held that the offense of criminal damage to property was a lesser included offense of breaking and entering because both offenses require actual property damage. Thus, the evident purpose of the breaking and entering statute, when entry is obtained by breaking or dismantling, is to punish unauthorized entry onto property that is accomplished by physical damage to that property.
This is not a situation where the statute means something other than what it says. See State v. Sorrelhorse, 2011-NMCA-095, ¶ 20, 150 N.M. 536, 263 P.3d 313 (interpreting the breaking and entering statute according to its plain terms); State v. Michael S., 1995-NMCA-112, ¶ 3, 120 N.M. 617, 904 P.2d 595 ("Ordinarily, we should give effect to the plain language of a statute."). {17} There are two competing meanings of the term "breaking."
While this action satisfies the “entering” element of burglary, we find that it does not satisfy the “breaking” element. As aptly noted by the New Mexico Court of Appeals in State v. Sorrelhorse, 150 N.M. 536, 263 P.3d 313, 318 (¶ 19) (N.M.Ct.App.2011): “[T]he breaking element require[s] some aspect of force in order to distinguish it from the element of entering[.]”¶ 22. Adopting the reasoning of Judge Southwick's dissent in Chaney, we conclude that the mere act of walking through a raised, open garage door does not constitute an “act or force, however slight, employed to effect an entrance” and is not a “breaking.”